Obstruction of Justice: An Overview
of Some of the Federal Statutes That
Prohibit Interference with Judicial,
Executive, or Legislative Activities
Charles Doyle
Senior Specialist in American Public Law
November 5, 2010
Congressional Research Service
7-5700
www.crs.gov
RL34303
CRS Report for Congress
P
repared for Members and Committees of Congress
Obstruction of Justice
Summary
Obstruction of justice is the impediment of governmental activities. There are a host of federal
criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of
judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation
(18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505),
conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule
and common law).
The laws that supplement, and sometimes mirror, the basic six tend to proscribe a particular
means of obstruction. Some, like the perjury and false statement statutes, condemn obstruction by
lies and deception. Others, like the bribery, mail fraud, and wire fraud statutes, prohibit
obstruction by corruption. Some outlaw the use of violence as a means of obstruction. Still others
ban the destruction of evidence. A few simply punish “tipping off” those who are the targets of an
investigation.
Many of these offenses may also provide the basis for racketeering and money laundering
prosecutions, and each provides the basis for criminal prosecution of anyone who aids and abets
in or conspires for their commission.
Moreover, regardless of the offense for which an individual is convicted, his sentence may be
enhanced as a consequence of any obstruction of justice for which he is responsible, if committed
during the course of the investigation, prosecution, or sentencing for the offense of his conviction.
The enhancement may result in an increase in his term of imprisonment by as much as four years.
This report is available in abbreviated form—without footnotes, quotations, or citations—as CRS
Report RS22783, Obstruction of Justice: An Abridged Overview of Related Federal Criminal
Laws. Excerpted portions of this report are available as follows: CRS Report RL34304,
Obstruction of Congress: a Brief Overview of Federal Law Relating to Interference with
Congressional Activities; CRS Report RS22784, Obstruction of Congress: An Abridged Overview
of Federal Criminal Laws Relating to Interference with Congressional Activities; CRS Report 98-
808, Perjury Under Federal Law: A Brief Overview; and CRS Report 98-807, Perjury Under
Federal Law: A Sketch of the Elements. All by Charles Doyle.
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Contents
Introduction ................................................................................................................................ 1
General Obstruction Prohibitions ................................................................................................ 1
Witness Tampering (18 U.S.C. 1512) .......................................................................................... 1
Obstruction by Violence (18 U.S.C. 1512(a)) ........................................................................ 2
Auxiliary Offenses and Liability ..................................................................................... 5
Obstruction by Intimidation, Threats, Persuasion, or Deception (18 U.S.C. 1512(b)............... 9
Obstruction by Destruction of Evidence (18 U.S.C. 1512(c)) ............................................... 13
Obstruction by Harassment (18 U.S.C. 1512(d)).................................................................. 14
Obstructing Federal Courts (18 U.S.C. 1503) ............................................................................ 16
The Omnibus Provision....................................................................................................... 16
Interfering with Jurors or Judicial Officials (18 U.S.C. 1503) .............................................. 19
Auxiliary Offenses and Liability ......................................................................................... 21
Obstructing Congressional or Administrative Proceedings (18 U.S.C. 1505).............................. 22
Retaliating Against Federal Witnesses (18 U.S.C. 1513)............................................................ 24
Conspiracy to Obstruct (18 U.S.C. 371) .................................................................................... 26
Conspiracy to Defraud ........................................................................................................ 27
Conspiracy to Commit a Substantive Offense ...................................................................... 27
Contempt .................................................................................................................................. 28
Criminal Contempt of Court................................................................................................ 28
Criminal Contempt........................................................................................................ 31
Contempt of Congress......................................................................................................... 35
Statutory Contempt of Congress .................................................................................... 35
Inherent Contempt of Congress ..................................................................................... 40
Contempt of Court at Congressional Behest .................................................................. 41
Obstruction of Justice by Violence or Threat ............................................................................. 41
Violence and Threats Against Officials, Former Officials, and Their Families
(18 U.S.C. 115)................................................................................................................ 41
Violence and Threats Against Federal Officials on Account of the Performance of
Their Duties ..................................................................................................................... 44
Obstruction of Justice by Bribery .............................................................................................. 46
Bribery of Jurors, Public Officers and Witnesses (18 U.S.C. 201) ........................................ 46
Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343, 1346)........................................ 49
Obstruction by Extortion Under Color of Official Right (18 U.S.C. 1951) ........................... 52
Obstruction of Investigations by Bribery (18 U.S.C. 1510(a)).............................................. 53
Obstruction of Justice by Destruction of Evidence..................................................................... 53
Obstruction of Investigations by Destruction of Evidence (18 U.S.C. 1519)......................... 54
Destruction of Property to Prevent Seizure (18 U.S.C. 2232(a))........................................... 57
Destruction of Corporate Audit Records (18 U.S.C. 1520)................................................... 57
Obstruction of Justice by Deception .......................................................................................... 58
Perjury in a Judicial Context (18 U.S.C. 1623) .................................................................... 58
Perjury Generally (18 U.S.C. 1621)..................................................................................... 63
Subornation of Perjury (18 U.S.C. 1622)............................................................................. 66
False Statements (18 U.S.C. 1001) ...................................................................................... 66
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Obstruction of Justice by “Tip-Off”........................................................................................... 70
Specific Obstructions ................................................................................................................ 71
Influencing Jurors by Writing (18 U.S.C. 1504)................................................................... 72
Obstruction of Justice as a Sentencing Factor (U.S.S.G. §3C1.1) ............................................... 73
Contacts
Author Contact Information ...................................................................................................... 76
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Introduction
Obstruction of justice is the frustration of governmental purposes by violence, corruption,
destruction of evidence, or deceit.1 It is a federal crime. In fact, federal obstruction of justice laws
are legion; too many for even passing reference to all of them in a single report.2 This is a brief
description of 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 of force or the threat of the use
of force to prevent the production of evidence (18 U.S.C. 1512(a)); use of deception or corruption
or intimidation to prevent the production of evidence (18 U.S.C. 1512(b)); destruction or
concealment of evidence or attempts to do so (18 U.S.C. 1512(c)); and witness harassment to
prevent the production of evidence (18 U.S.C. 1512(d)). The offenses have similar, but not
identical, objectives and distinctive elements of knowledge and intent. Section 1512 also contains
free standing provisions that apply to one or more of the offenses within the section. These deal
with: affirmative defenses (18 U.S.C. 1512(e)); jurisdictional issues (18 U.S.C. 1512(f),(g),(h));
venue (18 U.S.C. 1512(i)); sentencing (18 U.S.C. 1512(j)); and conspiracy (18 U.S.C. 1512(k)).
1 Black’s describes obstruction of justice simply as any “interference with the orderly administration of law and
justice,” BLACK’S LAW DICTIONARY, 1107 (8th ed. 2004).
2 For this reason, theft and embezzlement statutes are beyond the scope of this report, even though they are often
designed to prevent the frustration of government programs.
3 Portions of this report draw upon two earlier documents, CRS Rept. 98-808, Perjury Under Federal Law: A Brief
Overview, and CRS Rept. 98-832, Obstruction of Justice Under Federal Law: A Review of Some of the Elements.
4 Contempt is a creature of statute and common law described in, but not limited to, 18 U.S.C. 401, 402; 2 U.S.C. 192.
5 18 U.S.C. 1515(a)(1) (“As used in sections 1512 and 1513 of this title and in this section—(1) the term “official
proceeding” means—(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a
bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United
States Court of Federal Claims, or a Federal grand jury; (B) a proceeding before the Congress; (C) a proceeding before
a Federal Government agency which is authorized by law; or (D) a proceeding involving the business of insurance
whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner
appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose
activities affect interstate commerce”). Federal prosecutions for obstructing state insurance proceedings appear to have
been infrequent. For additional discussion of 18 U.S.C. 1512 see, Twenty-Fifth Survey of White Collar Crime:
Obstruction of Justice, 47 AMERICAN CRIMINAL LAW REVIEW 847 (2010).
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Obstruction by Violence (18 U.S.C. 1512(a))
Subsection 1512(a) has slightly different elements depending upon whether the offense involves a
killing or attempted killing—18 U.S.C. 1512(a)(1)—or some other use of physical force or a
threat—18 U.S.C. 1512(a)(2).6 In essence, they condemn the use of violence to prevent a witness
from testifying, producing evidence for an investigation, or bringing a crime to the attention of
authorities, and they set their penalties according to whether the obstructive violence used is a
homicide, an assault, or a threat. In more exact terms, they declare:
1512(a)(1) 1512(a)(2)
I. Whoever
I. Whoever
II. a. kills or
II. a. uses physical force,
b. attempts to kill
b. attempts to use physical force,
c. uses the threat of physical force, or
d. attempts to use the threat of physical force
III. with the intent to
III. with the intent to
a. prevent attendance or testimony at an official
a. influence, delay, or prevent testimony at an official
proceeding (i.e., a federal judicial, legislative or
proceeding
administrative proceeding)
b. prevent the production of an item at an official
b. cause or induce another to withhold testimony or an
proceeding
item at an official proceeding
c. prevent the communication to U.S. law
c. hinder, delay or prevent the communication to U.S.
enforcement authorities of a federal offense or a
law enforcement authorities of a federal offense or a
violation of probation, parole, or supervised
violation of probation, parole, or supervised release
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. shal be punished under §1512(a)(3)
IV. shal be punished under §1512(a)(3)
Unless countermanded by subsection 1512(j), subsection 1512(a)(3) provides the sanctions for
both subsection 1512(a)(1) and (a)(2). Homicide is punished as provided in 18 U.S.C. 1111 and
1112, that is, murder in the first degree is punishable by death or imprisonment for life; murder in
the second degree is punishable by imprisonment for any term of years or for life; voluntary
manslaughter is punishable by imprisonment for not more than 15 years and involuntary
manslaughter by imprisonment for not more than 8 years.7 Attempted murder, assault, and
6 Here and throughout this report the outline of the statute’s elements uses the language of the statute wherever
possible.
7 18 U.S.C. 1512(a)(3)(A).
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attempted assault are punishable by imprisonment for not more than 30 years;8 and a threat to
assault punishable by imprisonment for not more than 20 years.9
Subsection 1512(j) provides that the maximum term of imprisonment for subsection 1512(a)
offenses may be increased to match the maximum term of any offense involved in an obstructed
criminal trial.10
“To establish a crime under the [disclosure to a] ‘law enforcement officer’ section of the Act, the
government must prove that (1) the defendant killed or attempted to kill a person; (2) the
defendant was motivated by a desire to prevent the communication between any person and law
enforcement authorities concerning the commission or possible commission of an offense; (3) the
offense was actually a federal offense; and (4) the defendant believed that the person in (2) above
might communicate with the federal authorities.”11
There are two statutory defenses to charges under §1512. One covers legitimate legal advice and
related services, 18 U.S.C. 1515(c),12 and is intended for use in connection with the corrupt
persuasion offenses proscribed elsewhere in §1512 rather than the violence offenses of subsection
1512(a). The other statutory defense is found in subsection 1512(e) and creates an affirmative
defense when an individual engages only in conduct that is lawful in order to induce another to
testify truthfully. The defense would appear to be of limited use in the face of a charge of the
obstructing use or threat of physical force in violation of subsection 1512(a).13
Subsections 1512(f) and 1512(g) seek to foreclose a cramped construction of the various offenses
proscribed in §1512. Subsection 1512(f) declares that the evidence that is the object of the
obstruction need not be admissible and that the obstructed proceedings need not be either pending
or imminent. Whether the defendant’s misconduct must be shown to have been taken in
anticipation of such proceedings is more difficult question.
8 18 U.S.C. 1512(a)(3)(B).
9 18 U.S.C. 1512(a)(3)(C). Other than the murder offenses, violations of subsection 1512(a) are also punishable by a
fine of not more than $250,000, 18 U.S.C. 1512(a)(3), 1111, 1112, 3571.
10 “If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of
imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the
maximum term that could have been imposed for any offense charged in such case,” 18 U.S.C. 1512(j).
11 United States v. Rodriguez-Marrero, 390 F.3d 1, 13 (1st Cir. 2004); United States v. Sandstrom, 594 F.3d 634, 655
(8th Cir. 2010)(quoting Rodriguez-Marrero); United States v. Fowler, 603 F.3d 883, 887 (11th Cir. 2010)(“Thus, for the
government to prove a violation of §1512(a)(1)(C) it must show: (1) the defendant knowingly and willfully killed a
person; and (2) the defendant killed the person with the intent to prevent the communication of information relating to
the commission or possible commission of a federal offense”).
12 “This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in
connection with or anticipation of an official proceeding,” 18 U.S.C. 1512(c).
13 The Sarbanes-Oxley Act redesignated subsection 1512(d)(2000 ed.) as subsection 1512(e): “In a prosecution for an
offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a
preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole
intention was to encourage, induce, or cause the other person to testify truthfully,” 18 U.S.C. 1512(e). See United
States v. Lowery, 135 F.3d 957, 960 (5th Cir. 1998)(reversing the defendant’s obstruction of justice conviction for the
trial court’s failure to permit evidence substantiating the defense); United State v. Thompson, 76 F.2d 442 (2d Cir.
1996)(upholding the constitutionality of the defense in the face of a challenge that it unconstitutionally shifted the
burden of proof to the accused); United States v. Arias, 253 F.3d 453, 457 (9th Cir. 2001)(“This section was apparently
intended to exempt judicial officers who lawfully remind witnesses or defendants of their oath to give true testimony,
although the statutory language itself is not so limited. See U.S. v. Johnson, 968 F.2d 208, 213 (2d Cir. 1992)(quoting
legislative history)” ).
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The Supreme Court rejected the contention that language like that found in subsection 1512(f)
(making §1512 applicable to obstructions committed before any official proceedings were
convened) absolved the government of having to prove that the obstruction was committed with
an eye to possible official proceedings.14 That case, the Arthur Andersen case, however, involved
the construction of subsection 1512(b) which requires that the defendant be shown to have
“knowingly” engaged in the obstructing conduct. Subsection 1512(a) has no such explicit
“knowing” element. Yet, the government must still show that the offender’s violent act was
committed with the intent to prevent testimony or the disclosure of information to law
enforcement authorities.15
By virtue of subsection 1512(g), the government need not prove that a §1512 offender knew of
the federal status of the obstructed proceeding or investigation.16 Thus, for instance, to prove an
information obstruction offense, it need show no more than that the offender intended to prevent
the flow of information to law enforcement authorities concerning a federal crime; it need not
demonstrate that the offender intended to prevent the disclosures to federal authorities.17
As a consequence of subsection 1512(h), murder, attempted murder, or the use or threat of
physical force—committed overseas to prevent the appearance or testimony of a witness or the
production of evidence in federal proceedings in this country or to prevent a witness from
informing authorities of the commission of a federal offense or a federal parole, probation,
supervised release violation—is a federal crime outlawed in subsection 1512(a) that may be
prosecuted in this country.18
As a general rule, the courts will assume that Congress intends a statute to apply only within the
United States and to be applied consistent with the principles of international law—unless a
contrary intent is obvious.19 Subsection 1512(h) supplies the obvious contrary intent. Since a
contrary intent may be shown from the nature of the offense, the result would likely be the same
in the absence of subsection 1512(h). In the case of an overseas obstruction of federal
proceedings, the courts could be expected to discern a congressional intent to confer
extraterritorial jurisdiction20 and find such an application compatible with the principles of
14 Arthur Anderson, LLP v. United States, 544 U.S. 696, 707-8 (2005).
15 United States v. Fowler, 603 F.3d 883, 886-87 (11th Cir. 2010); United States v. Sandstrom, 594 F.3d 634, 655 (8th
Cir. 2010).
16 18 U.S.C. 1512(g)(“In a prosecution for an offense under this section, no state of mind need be proved with respect
to the circumstance—(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government
agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal
grand jury, or a Federal Government agency; or (2) that the judge is a judge of the United States or that the law
enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf
of the Federal Government or serving the Federal Government as an adviser or consultant”).
17 United States v. Harris, 498 F.3d 278, 284-287 (4th Cir. 2007)(fire bombing the home of a witness who had
complained to local authorities about drug trafficking (trafficking is both a state and federal offense).
18 18 U.S.C. 1512(h)(“There is extraterritorial Federal jurisdiction over an offense under this section”); see e.g., United
States v. Fisher, 494 F.3d 5, 8-9 (1st Cir. 2007)(contemplated murder in Canada of a federal witness).
19 EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991)(“It is a long-standing principle of American law that
legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the
United States”); Murray v. the Schooner Charming Betsy, 2 Cranch 64, 118 (6 U.S. 34, 67)(1804)(“[A]n act of
Congress ought never to be construed to violate the law of nations, if any other possible construction remains”);
Weinberger v. Rossi, 456 U.S. 25, 32 (1982).
20 United States v. Bowman, 260 U.S. 94, 98 (1922)(“But the same rule of interpretation [of purely domestic
application] should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for
(continued...)
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international law.21 The existence of extraterritorial jurisdiction is one thing; the exercise of such
jurisdiction is another. Federal investigation and prosecution of any crime committed overseas
generally presents a wide range of diplomatic, legal and practical challenges.22
Subsection 1512(i) states that violations of §1512 or §1503 may be prosecuted in any district
where the obstruction occurs or where the obstructed proceeding occurs or is to occur. In the case
of obstructions committed in this country, the Constitution may limit the trial in the district of the
obstructed proceedings to instances when a conduct element of the obstruction has occurred
there.23
Auxiliary Offenses and Liability
Subsection 1512(k) makes conspiracy to violate §1512 a separate offense subject to the same
penalties as the underlying offense. The section serves as an alternative to a prosecution under 18
U.S.C. 371 that outlaws conspiracy to violate any federal criminal statute. Section 371 is
punishable by imprisonment for not more than five years and conviction requires the government
to prove the commission of an overt act in furtherance of the scheme by one of the conspirators.24
Subsection 1512(k) has no specific overt act element, and the courts have generally declined to
imply one under such circumstances.25 Regardless of which section is invoked, conspirators are
criminally liable as a general rule under the Pinkerton doctrine for any crime committed in the
foreseeable furtherance of the conspiracy.26
(...continued)
the government’s jurisdiction, but are enacted because of the right of the government to defend itself against
obstruction, or fraud wherever perpetrated. . .. We can not suppose that when Congress enacted the [fraud] statute or
amended it, it did not have in mind that a wide field for such fraud upon the government was in private and public
vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States,
and therefore intend to include them in the section”); Ford v. United States, 273 U,.S. 593, 623 (1927) (“a man who
outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is
done”).
21 Historically, the courts have found compatibility with international law where a case falls within one of the five
principles upon which geographical jurisdiction may be predicated. Either of two such principles would appear to cover
the overseas application of Section 1512. The territorial principle holds that a country may apply its laws to misconduct
that has a substantial impact within its borders, United States v. Neil, 312 F.3d 419, 422 (9th Cir. 2002); the protective
principle holds that a country may apply its laws to protect the integrity of governmental functions, United States v.
Yousef, 327 F.3d 56, 121 (2d Cir. 2003). See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES, §402 & 402 cmt. f (1986).
22 See generally CRS Rept. 94-166, Extraterritorial Application of American Criminal Law.
23 The Constitution requires federal crimes committed within the United States to be tried in the states and districts in
which they occur, U.S. Const. Art.III, §2, cl.3; Amend. VI. It permits Congress to determine where federal crimes
committed outside the United States may be tried, U.S. Const. Art. III, §2, cl.3; see 18 U.S.C. 3238. This means a
federal crime committed within the United States may be tried wherever one of its conduct elements is committed,
United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). Although the Court left the question unaddressed, id. at
279 n.2, this seems to preclude trial within the district of the obstructed proceeding if that is the only nexus to an
obstruction committed within the United States in the district of the obstructed proceeding, United States v. Cabrales,
524 U.S. 1, 5-6 (1998); United States v. Bowens, 224 F.3d 302, 314 (4th Cir. 2000); United States v. Strain, 396 F.3d
689, 694 (5th Cir. 2005). For a more detailed discussion see, CRS Report RL33223, Venue: A Legal Analysis of Where
a Federal Crime May Be Tried.
24 18 U.S.C. 371.
25 E.g., Whitfield v. United States, 543 U.S. 209, 214-15 (2004); United States v. Shabani, 513 U.S. 10, 17 (1994).
26 Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Heras, 609 F.3d 101, 110-11 (2d Cir.
2010); United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010); United States v. Merlino, 592 F.3d 22, 29 (1st Cir.
(continued...)
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Accomplices to a violation of subsection 1512(a) may incur criminal liability by operation of 18
U.S.C. 2, 3, 4, or 373 as well. Section 2 treats accomplices before the fact as principals. That is, it
declares that those who command, procure or aid and abet in the commission of a federal crime
by another, are to be sentenced as if they committed the offense themselves.27 As a general rule,
“[i]n order to aid and abet another to commit a crime it is necessary that a defendant in some sort
associate himself with the venture, that he participate in it as in something he wishes to bring
about, [and] that he seek by his action to make it succeed.”28 It is also necessary to prove that
someone else committed the underlying offense.29
Section 3 outlaws acting as an accessory after the fact,30 which occurs when “one knowing that an
offense has been committed, receives, relieves, comforts or assists the offender in order to hinder
his or her apprehension, trial, or punishment.”31 Prosecution requires the commission of an
underlying federal crime by someone else.32 An offender cannot be both a principal and an
accessory after the fact to the same offense.33 Offenders face sentences set at one half of the
sentence attached to the underlying offense, or if the underlying offense is punishable by life
imprisonment or death, by imprisonment for not more than 15 years (and a fine of not more than
$250,000).34
Although at first glance section 4’s misprision prohibition may seem to be a failure-to-report
offense, misprision of a felony under the section is in essence a concealment offense.35 “The
elements of misprision of a felony under 18 U.S.C. 4 are (1) the principal committed and
completed the felony alleged; (2) the defendant had full knowledge of that fact; (3) the defendant
(...continued)
2010).
27 18 U.S.C. 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense against the United States, is punishable as a principal”).
28 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); United States v. Thompson, 610 F.3d 1335, 1338 (11th Cir.
2010); United States v. Bronzino, 598 F.3d 276, 278-79 (6th Cir. 2010); see also United States v. Wilson, 160 F.3d 732,
739 (D.C. Cir. 1998)(aiding and abetting a subsection 1512(a) offenses)(“Aiding and abetting requires the government
to prove: (1) the specific intent to facilitate the commission of a crime of by another; (2) guilty knowledge; (3) that the
other was committing an offense; and (4) assisting or participating in the commission of the offense”).
29 United States v. Mercado, 610 F.3d 841, 846 (3d Cir. 2010); United States v. Perez-Melendez, 599 F.3d 31, 40 (1st
Cir. 2010); United States v. Liera, 585 F.3d 1237, 1246 (9th Cir. 2009).
30 18 U.S.C. 3 (“Whoever, knowing that an offense against the United States has been committed, receives, relieves,
comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after
the fact ... ”).
31 United States v. Gianakos, 415 F.3d 912, 920 n.4 (8th Cir. 2005); United States v. DeLaRosa, 171 F.3d 215, 221 (5th
Cir. 1999); United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998).
32 United States v. Hill, 279 F.3d 731, 741 (9th Cir. 2002); United States v. DeLaRosa, 171 F.3d 215, 221 (5th Cir.
1999); United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998).
33 United States v. Taylor, 322 F.3d 1209, 1211-212 (9th Cir. 2003).
34 18 U.S.C. 3 (“ ... Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be
imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not
more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is
punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years”).
35 18 U.S.C. 4 (“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United
States, conceals and does not as soon as possible make known the same to some judge or other person in civil or
military authority under the United States, shall be fined under this title or imprisoned not more than three years, or
both”).
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failed to notify the authorities; and (4) defendant took steps to conceal the crime.”36 The offense
is punishable by imprisonment for not more than three years and/or a fine of not more than
$250,000.37
Solicitation to commit an offense under subsection 1512(a), or any other crime of violence, is
prohibited in 18 U.S.C. 373.38 “To establish solicitation under §373, the Government must
demonstrate that the defendant (1) had the intent for another to commit a crime of violence and
(2) solicited, commanded, induced or otherwise endeavored to persuade such other person to
commit the crime of violence under circumstances that strongly corroborate evidence of that
intent.”39 Section 373 provides an affirmative statutory defense for one who prevents the
commission of the solicited offense.40 Offenders face penalties set at one half of the sanctions for
the underlying offense, but imprisonment for not more than 20 years, if the solicited crime of
violence is punishable by death or imprisonment for life.41
A subsection 1512(a) violation opens up the prospect of prosecution for other crimes for which a
violation of subsection 1512(a) may serve as an element. The racketeering statutes (RICO) outlaw
acquiring or conducting the affairs of an interstate enterprise through a pattern of “racketeering
activity.”42 The commission of any of a series of state and federal crimes (predicate offenses)
constitutes a racketeering activity.43 Section 1512 offenses are RICO predicate offenses.44 RICO
violations are punishable by imprisonment for not more that 20 years (or imprisonment for life if
36 United States v. Gebbie, 294 F.3d 540, 544 (3d Cir. 2002); United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996);
United States v. Vasquez-Chan, 978 F.2d 546, 555(9th Cir. 1992); see also Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir.
2008).
37 18 U.S.C. 4. Unless otherwise provided, all federal crimes with a maximum penalty of imprisonment of more than
one year are subject to a fine of not more than $250,000 for individual defendants and not more than $500,000 for
organizational defendants, 18 U.S.C. 3571.
38 18 U.S.C. 373(a)(“Whoever, with intent that another person engage in conduct constituting a felony that has as an
element the use, attempted use, or threatened use of physical force against property or against the person of another in
violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits,
commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be
imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not
more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime
solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years”). In United
States v. Fisher, 494 F.3d 5, 7-8 (1st Cir. 2007), the First Circuit upheld a conviction for “solicitation to commit a crime
of violence, in violation of 18 U.S.C. 373. The particular crime of violence specified in the indictment was the murder
of a cooperating federal witness. See 18 U.S.C. 1512(a)(1)(A).”
39 United States v. Caldwell, 433 F.3d 378, 390 (4th Cir. 2005); United States v. White, 610 F.3d 956, 960 (7th Cir.
2010); United States v. Rahman, 189 F.3d 88, 125 (2d Cir. 1999).
40 18 U.S.C. 373(b), (c)(“(b) It is an affirmative defense to a prosecution under this section that, under circumstances
manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of
the crime solicited. A renunciation is not “voluntary and complete” if it is motivated in whole or in part by a decision to
postpone the commission of the crime until another time or to substitute another victim or another but similar objective.
If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a
preponderance of the evidence. (c) It is not a defense to a prosecution under this section that the person solicited could
not be convicted of the crime because he lacked the state of mind required for its commission, because he was
incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.”).
41 18 U.S.C. 373.
42 18 U.S.C. 1961-1963.
43 18 U.S.C. 1961.
44 Id. E.g., Sotirion v. United States, 617 F.3d 27, 29 (1st Cir. 2010); United States v. Royer, 599 F.3d 886, 889 (2d Cir.
2010).
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the predicate offense carries such a penalty), a fine of not more than $250,000 and the
confiscation of related property.45
The money laundering provisions, among other things, prohibit financial transactions involving
the proceeds of a “specified unlawful activity,” that are intended to launder the proceeds or to
promote further “specified unlawful activity.”46 Any RICO predicate offense is by virtue of that
fact a specified unlawful activity, i.e., a money laundering predicate offense.47 Money laundering
is punishable by imprisonment for not more than 20 years, a fine ranging from $250,000 to
$500,000 depending upon the nature of the offenses, and the confiscation of related property.48
A subsection 1512(a) offense is by definition a crime of violence.49 Commission of a crime of
violence is an element of, or a sentence enhancement factor for, several other federal crimes, e.g.:
- 18 U.S.C. 25 (use of a child to commit a crime of violence),50
- 521 (criminal street gang),51
- 924(c)(carrying a firearm during and in relation to a crime of violence),52
- 929 (carrying a firearm with restricted ammunition during and in relation to a crime of
violence),53
- 1028 (identity fraud in connection with a crime of violence).54
45 18 U.S.C. 1963. For a general discussion of RICO see, Twenty-Fifth Survey of White Collar Crime: Racketeer
Influenced and Corrupt Organizations, 47 AMERICAN CRIMINAL LAW REVIEW 961 (2010); and CRS Rept. 96-950,
RICO: A Brief Sketch. See also 18 U.S.C. 1959 which outlaws violent crimes in aid of racketeering.
46 18 U.S.C. 1956.
47 18 U.S.C. 1956(c)(7)(A). A second money laundering statute, 18 U.S.C. 1957, outlaws monetary transactions
involving more than $10,000 consisting of proceeds generated by any of the predicate offenses identified in Section
1956, 18 U.S.C. 1957(f).
48 18 U.S.C. 1956, 981, 982. For a general discussion of the money laundering statutes see, Twenty-Fifth Survey of
White Collar Crime: Money Laundering, 47 AMERICAN CRIMINAL LAW REVIEW 821 (2010); and CRS Report RL33315,
Money Laundering: An Overview of 18 U.S.C. 1956 and Related Federal Criminal Law.
49 18 U.S.C. 16(a)(“The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or property of another”).
50 Offenders face a fine and term of imprisonment twice that of the offense committed by the child, 18 U.S.C. 25(b).
51 Offenders face a term of imprisonment of not more than 10 years in addition to the penalty imposed for the crime of
violence, 18 U.S.C. 521(b).
52 Offenders face a term of imprisonment ranging from imprisonment for not less than five years to imprisonment for
life depending upon the circumstances of the offenses in addition to the penalty imposed for the underlying crime of
violence, 18 U.S.C. 924(c)(1). In United States v. Harris, 498 F.3d 278 (4th Cir. 2007), the Fourth Circuit upheld a
conviction for violating subsections 1512(a) and 924(c) in connection with the firebombing of a witness’s home (for
purposes of 924(c) a firearm includes explosive or incendiary devices, 18 U.S.C. 921(a)(3),(4)).
53 Offenders face a term of imprisonment of not less than 5 years in addition to the penalty imposed for the underlying
crime of violence, 18 U.S.C. 929(a)(1).
54 Offenders face a term of imprisonment of not more than 20 years, 18 U.S.C. 1028(b)(3).
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Obstruction by Intimidation, Threats, Persuasion, or Deception (18
U.S.C. 1512(b)
The second group of offenses within §1512 outlaws obstruction of federal congressional, judicial,
or administrative activities by intimidation, threat, corrupt persuasion, or deception, 18 U.S.C.
1512(b). Parsed to its elements, subsection 1512(b) provides that:
I. Whoever
II. knowingly
A. uses intimidation
B. threatens, or
C. corruptly persuades another person, or
D. attempts to do so, or
E. 1. engages in misleading conduct55
2. toward another person,
III. with intent to
A. 1. a. influence,
b. delay, or
c. prevent
2. the testimony of any person
3. in an official proceeding,56 or
B. cause or induce any person to
1. a. i. withhold testimony, or
ii. withhold a
(I) record,
(II) document, or
(III) other object,
b. from an official proceeding, or
2. a. i. alter,
ii. destroy,
iii. mutilate, or
iv. conceal
b. an object
55 “As used in sections 1512 and 1513 of this title and in this section ... (3) the term ‘misleading conduct’ means—(A)
knowingly making a false statement; (B) intentionally omitting information from a statement and thereby causing a
portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false
impression by such statement; (C) with intent to mislead, knowingly submitting or inviting reliance on a writing or
recording that is false, forged, altered, or otherwise lacking in authenticity; (D) with intent to mislead, knowingly
submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is
misleading in a material respect; or (E) knowingly using a trick, scheme, or device with intent to mislead,” 18 U.S.C.
1515(a)(3).
56 “(a) As used in sections 1512 and 1513 of this title and in this section—(1) the term ‘official proceeding’ means—
(A) a proceeding before a judge or court of the United States, a United States magistrate, a bankruptcy judge, a judge of
the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Claims Court, or a
Federal grand jury; (B) a proceeding before the Congress; (C) a proceeding before a Federal Government agency which
is authorized by law; or (D) a proceeding involving the business of insurance whose activities affect interstate
commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or
agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate
commerce,” 18 U.S.C. 1515(a)(1).
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c. with intent to impair
d. the object’s
i. integrity or
ii. availability for use
e. in an official proceeding, or
3. a. evade
b. legal process
c. summoning that person
i. to appear as a witness, or
ii. to produce a
(I) record,
(II) document, or
(III) other object,
iii. in an official proceeding, i.e., a
(I) federal court proceeding,
(II) federal grand jury proceeding,
(III) Congressional proceeding,
(IV) federal agency proceeding, or
(V) proceeding involving the insurance business; or
4. a. be absent
b. from an official proceeding,
c. to which such person has been summoned by legal process; or
C. 1. a. hinder,
b. delay, or
c. prevent
2. the communication to a
a. federal judge or
b. federal law enforcement officer57
3. of information relating to the
a. commission or
b. possible commission of a
4. a. federal offense or
b. [a] violation of conditions of
i. probation,
ii. supervisor release,
iii. parole, or
iv. release pending judicial proceedings;
shall be fined under this title or imprisoned not more than 20 years, or both.58
57 “(a) As used in sections 1512 and 1513 of this title and in this section ... (4) the term ‘law enforcement officer’ means
an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal
Government or serving the Federal Government as an adviser or consultant—(A) authorized under law to engage in or
supervise the prevention, detection, investigation, or prosecution of an offense; or (B) serving as a probation or pretrial
services officer under this title,” 18 U.S.C. 1515(a)(4).
58 18 U.S.C. 1512(b). “Shall be fined under this title” refers to the fact that as a general rule in the case of felonies 18
U.S.C. 3571 calls for fines of not more than the greater of $250,000 for individuals ($500,000 for organizations) or of
twice the amount of the gain or loss associated with the offense.
As in the case of subsection 1512(a), if a subsection 1512(b) obstruction is committed in connection with the trial of a
criminal charge which is more severely punishable, the higher penalty applies to the subsection 1512(b) violation as
(continued...)
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In more general terms, subsection 1512(b) bans (1) knowingly, (2) using one of the prohibited
forms of persuasion (intimidation, threat, misleading or corrupt persuasion), (3) with the intent to
prevent a witness’s testimony or physical evidence from being truthfully presented at official
federal proceedings or with the intent to prevent a witness from cooperating with authorities in a
matter relating to a federal offense.59 It also bans any attempt to so intimidate, threaten, or
corruptly persuade.60 The term “corruptly” in the phrase “corruptly persuades” as it appears in
subsection 1512(b) has been found to refer to the manner of persuasion,61 the motive for
persuasion,62 and the manner of obstruction.63 Prosecution for obstructing official proceedings
under subsection 1512(b)(2) will require proof that the defendant intended to obstruct a particular
proceeding.64 Prosecution for obstructing the flow of information to law enforcement officials
(...continued)
well, 18 U.S.C. 1512(j).
59 See e.g., United States v. Victor, 973 F.2d 975, 978 (1st Cir. 1992); United States v. Thompson, 76 F.3d 442, 452-53
(2d Cir. 1996); United States v. Holt, 460 F.3d 934, 938 (7th Cir. 2006); United States v. Gurr, 471 F.3d 144, 154 (D.C.
Cir. 2007); United States v. Tampas, 493 F.3d 1291, 1300 (11th Cir. 2007); United States v. Carson, 560 F.3d 566, 580
(6th Cir. 2009).
60 18 U.S.C. 1512(b).
61 United States v. LaShay, 417 F.3d 715, 718 (7th Cir. 2005)(“corrupt persuasion occurs where a defendant tells a
potential witness a false story as if the story were true, intending that the witness believe the story and testify to
it”)(very much like the offenses elsewhere in subsection 1512(b) of “knowingly ... engag[ing] in misconduct toward
another person” with obstructive intent); United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997)(emphasis in the
original)(“Thus, we are confident that both attempting to bribe someone to withhold information and attempting to
persuade someone to provide false information to federal investigators constitute ‘corrupt persuasion’ under
§1512(b)”).
62 United States v. Gotti, 459 F.3d 296, 343 (2d Cir. 2006)(“This Circuit has defined ‘corrupt persuasion’ as persuasion
that is ‘motivated by an improper purpose.’ United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996). We have also
specifically stated that the Obstruction of Justice Act can be violated by corruptly influencing a witness to invoke the
Fifth Amendment privilege in his grand jury testimony. See United States v. Cioffi, 493 F.2d 111, 1118 (2d Cir.
1974)”); United States v. Khatami, 280 F.3d 907, 911-12 (9th Cir. 2002)(“Synthesizing these various definitions of
“corrupt” and “persuade,” we note the statute strongly suggests that one who attempts to “corruptly persuade” another
is, given the pejorative plain meaning of the root adjective “corrupt,” motivated by an inappropriate or improper
purpose to convince another to engage in a course of behavior-such as impeding an ongoing criminal investigation”);
United States v. Shotts, 145 F.3d 1289, (11th Cir. 1998)(“It is reasonable to attribute to the ‘corruptly persuade’
language in Section 1512(b), the same well-established meaning already attributed by the courts to the comparable
language in Section 1503(a), i.e., motivated by an improper purpose”).
63 United States v. Baldridge, 559 F.3d 1126, 1143 (10th Cir. 2009)(“[T]he ‘corruptly persuades’ element requires the
government to prove a defendant’s action was done voluntarily and intentionally to bring about false or misleading
testimony or to prevent testimony with the hope or expectation of some benefit to the defendant or another person”);
United States v. Hull, 456 F.3d 133, (3d Cir. 2006)(“There was ample evidence from which the jury could conclude
that Hull knowingly attempted to corruptly persuade Rusch, with the intent to change her testimony. See United States
v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997)(holding that ‘corrupt persuasion’ includes ‘attempting to persuade
someone to provide false information to federal investigators’)”); United States v. Cruzado-Laureano, 404 F.3d 470,
487 (1st Cir. 2005)(“Trying to persuade a witness to give false testimony counts as ‘corruptly persuading’ under
§1512(b)”); United States v. Burns, 298 F.3d 523, 540 (6th Cir. 2002)(“Burns attempted to ‘corruptly persuade’ Walker
by urging him to lie about the basis of their relationship, to deny that Walker knew Burns as a drug dealer, and to
disclaim that Burns was Walter’s source of crack cocaine”); United States v. Pennington, 168 F.3d 1060, 1066 (8th Cir.
1999)(“After carefully examining this amendment and its legislative history, the Third Circuit concluded that the
ambiguous term ‘corruptly persuades’ includes ‘attempting to persuade someone to provide false information to federal
investigators.’ United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997) (emphasis in the original). We agree”).
64 Even though the statute, 18 U.S.C. 1512(f), provides that the obstructed proceedings need be neither ongoing nor
pending at the time of the obstruction, it is “one thing to say that a proceeding need not be pending or about to be
instituted at the time of the offense, and quite another to say a proceeding need not even be foreseen. A knowingly ...
corrupt persuader cannot be someone who persuades others to shred documents under a comment retention policy when
he does not have in contemplation any particular official proceeding in which those documents might be material,”
(continued...)
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under subsection 1512(b)(3), on the other hand, apparently requires of no such nexus.65 A
subsection 1512(b)(3) investigation obstruction offense prosecution, however, does require proof
that “the offense in question was actually a federal offense and that the defendant believed that
the witness—toward whom the defendant engaged in [intimidating, threatening, corruptly
persuasive or] misleading conduct—might communicate with federal authorities.”66 The
defendant’s belief that a witness might confer with federal authorities can be inferred from the
nature of the offense and “additional appropriate evidence.”67
The attributes common to §1512 as a whole, apply to subsection 1512(b); some of which may fit
more comfortably in a subsection 1512(b) corrupt persuasion setting than they do in a 1512(a)
violence prosecution. The affirmative defenses in subsections 1512(e) and 1515(d) are prime
examples. Subsection 1512(e) removes by way of an affirmative defense good faith
encouragements of a witness to speak or testify truthfully, although it does not excuse urging a
witness to present fabrications as the truth.68 Subsection 1515(d) makes it clear that bona fide
(...continued)
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).
65 United States v. Carson, 560 F.3d 566, 580 (6th Cir. 2009)(“For violation of §1512(b)(3), it is sufficient if the
misleading information is likely to be transferred to a federal agent”); United States v. Ronda, 455 F.3d 1273, 1288
(11th Cir. 2006)(“Arthur Andersen interpreted and applied only §1512(b)(2), which explicitly requires that the acts of
obstruction relate to an official proceeding. Unlike §1512(b)(2), §1512(B)(3) makes no mention of an official
proceeding and does not require that a defendant’s misleading conduct relate in any way either to an official proceeding
or even to a particular on going investigation. . .. There is simply no reason to believe that the Supreme Court’s holding
in Arthur Andersen requires that we graft onto §1512(b)(3) an official proceeding requirement based on statutory
language in §1512(b)(2) that does not appear in §1512(b)(3). As we already noted in [United States v. Veal, 153 F.3d
1233 (11th Cir. 1998)], the federal nexus required under §1512(b)(2) is distinct from that required under §1512(b)(3).
Unlike the stricter an official proceeding requirement that appears in §1512(b)(2), §1512(b)(3) requires only that a
defendant intended to hinder, delay, or prevent communication to any law enforcement officer or judge of the United
States. Id. at 1248. This distinction was critical to our decision in Veal that §1512(b)(3) requires only the possible
existence of a federal crime and a defendant’s intention to thwart an inquire into that crime. Veal, 153 F.3d at 11250.
As we explained in Veal, §1512(b)(3) criminalizes the transfer of misleading information which actually relates to a
potential federal offense ... Veal, 153 F.3d at 1252 (emphasis in the original); cf., United States v. Byrne, 435 F.3d 16,
(1st Cir. 2006)(“If the defendant’s contention is that the government must prove the possible existence of a federal
crime and a defendant’s intention to thwart an inquiry into that crime by officials who happen to be federal, we
continue to agree. If the defendant suggests that Arthur Andersen requires a heightened showing of a nexus in a
§1512(b)(3) prosecution, between the intent to hinder communications and a particular law enforcement agency, we
express our doubts but defer any final judgment for a future case that requires resolution of that issue”).
66 United States v. Serrata, 425 F.3d 886, 898 (10th Cir. 2005); United States v. Guadalupe, 402 F.3d 409, 412 (3d Cir.
2005)(“To obtain a conviction pursuant to 18 U.S.C. 1512(b)(3), the government must prove that (1) the defendant
attempted to [intimidate, threaten, mislead or] corruptly persuade a person; (2) the defendant was motivated by a desire
to prevent the communication between that person and law enforcement authorities concerning the commission or
possible commission of an offense; (3) the offense was actually a federal offense; and (4) the defendant believed that
the person he attempted to [intimidate, threaten, mislead or] corruptly persuade might communicate with federal
authorities”).
67 United States v. Guadalupe, 402 F.3d 409, 412 (3d Cir. 2005)(This last element may be inferred from the fact the
offense was federal in nature, plus ‘additional appropriate evidence.’ An example of this ‘additional appropriate
evidence’ is that the defendant had actual knowledge of the federal nature of the offense”); cf., United States v. Lopez,
372 F.3d 86, 91-92 (2d Cir. 2004)(citing examples of additional appropriate evidence necessary in law enforcement
obstruction element in the context a subsection 1512(a) prosecution (obstruction through murder or physical force)).
68 United States v. Cruzado-Laureano, 404 F.3d 470 (1st Cir. 2005)(“Cruzado did ask that they tell the truth; however,
his version of ‘the truth’ that he urged upon them was anything but the truth”).
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legal advice and related services cannot be used to provide the basis for subsection 1512(b)
corrupt persuasion prosecution.69 Conversely, charges of soliciting a crime of violence—18
U.S.C. 373—or of using a child to commit a crime of violence—18 U.S.C. 25—are more likely to
be prosecutorial companions of a charge under subsection 1512(a) than under subsection 1512(b).
On the other hand, the extraterritorial and venue statements of subsections 1512(h) and 1512(i)
are as readily applicable to subsection 1512(b) persuasion prosecutions as they are to a subsection
1512(a) violent obstruction case. The same can be said of aiding and abetting, accessories after
the fact, misprision, and predicate offense status under RICO or the money laundering statutes.70
And, it is likewise a separate offense to conspire to violate subsection 1512(b) under either §371
or subsection 1512(k).
Obstruction by Destruction of Evidence (18 U.S.C. 1512(c))
The obstruction by destruction of evidence offense found in subsection 1512(c) is the creation of
the Sarbanes-Oxley Act,71 and proscribes obstruction of federal administrative, judicial, or
congressional proceedings by destruction of evidence.72
More specifically, subsection 1512(c) provides that
I. Whoever
II. corruptly
III. A.1.alters,
2. destroys,
3. mutilates, or
4. conceals
B. 1. a record,
2. document, or
3. other object, or
C. attempts to do so,
D. with the intent to impair the object’s
1. integrity, or
2. availability for use
E. in an official proceeding, or
IV. otherwise
A. 1. obstructs,
2. influences, or
3. impedes
69 E.g., United States v. Kellington, 217 F.3d 1084, 1098-1100 (9th Cir. 2000).
70 E.g., United States v. Gotti, 459 F.3d 296, 301 (2d Cir. 2006)(18 U.S.C. 1512(b) as a RICO predicate offense);
Sepulveda v. United States, 330 F.3d 55, 58 (1st Cir. 2003)(same).
71 P.L. 107-204, 116 Stat, 807 (2000).
72 E.g., United States v. Arbolaez, 450 F.3d 1283, 1286-287 (11th Cir. 2006)(when federal agents asked the defendant to
identify a cell phone they had seized in a drug trafficking investigation, the defendant “grabbed one of the phones,
ripped it apart and then he smashed it on the ground and tried to step on it. This made it impossible to retrieve numbers
and other information through the phone’s display.” The defendant was convicted of violating subsection 1512(c)).
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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.73
As is generally true of attempts to commit a federal offense, attempt to violate subsection 1512(c)
requires an intent to violate the subsection and a substantial step toward the accomplishment of
that goal.74
As for the necessary nexus between the defendant’s destructive conduct and the obstructed
proceedings: “the defendant’s conduct must ‘have a relationship in time, causation, or logic with
the [official] ... proceedings’; in other words, ‘the endeavor must have the natural and probable
effect of interfering with the due administration of justice.’”75
Like subsection 1512(a) and 1512(b) offenses, subsection 1512(c) offenses are RICO and money
laundering predicate offenses,76 and may provide the foundation for criminal liability as a
principal, accessory after the fact, conspirator, or one guilty of misprision.77 If the federal judicial,
administrative or congressional proceedings are obstructed, prosecution may be had in the United
States even if the destruction occurs overseas,78 the proceedings are yet pending,79 or the offender
is unaware of their federal character.80
Obstruction by Harassment (18 U.S.C. 1512(d))
The obstruction by harassment prohibition in subsection 1512(d) appeared in subsection 1512(c)
until redesignated by Sarbanes-Oxley, and declares:
I. Whoever,
II. intentionally,
III. harasses another person, and thereby
IV. A. hinders,
B. delays,
C. prevents, or
D. dissuades,
V. any person from
A. 1. attending or
2. testifying in
73 18 U.S.C. 1512(c).
74 United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007).
75 United States v. Reich, 479 F.3d 179, 184 (2d Cir. 2007); United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009);
United States v. Phillips, 583 F.3d 1261, 1264-265(10th Cir. 2009).
76 18 U.S.C. 1961, 1956(c)(7)(A).
77 18 U.S.C. 2, 3, 371, 1512(k), 4.
78 18 U.S.C. 1512(h).
79 18 U.S.C. 1512(f).
80 18 U.S.C. 1512(g).
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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
C. 1. arresting, or
2. seeking to arrest
3. another person
4. in connection with a federal offense, or
D. causing
1. a. a criminal prosecution, or
b. a parole revocation proceeding, or
c. a probation revocation proceeding
2. a. to be sought, or
b. instituted, or
3. assisting in such prosecution or proceeding, or
VI. attempts to do so
shall be fined under this title or imprisoned not more than 3 years, or both.81
The fine of crimes punishable by imprisonment for not more than 3 years is not more than
$250,000 (not more than $500,000 for organizations).82 The subsection does not apply to
obstructing a private individual who seeks information of criminal activity in order to report it to
federal authorities.83
Subsection 1512(d) harassment offenses are RICO and money laundering predicate offenses.84
The provisions of law relating to principals, accessories after the fact, misprision, and conspiracy
apply with equal force to offenses under subsection 1512(d),85 as do the provisions elsewhere in
§1512 relating to extraterritorial application,86 and abolition of the need to show pendency or
knowledge of the federal character of the obstructed proceedings or investigation.87
81 18 U.S.C. 1512(d).
82 18 U.S.C. 3571, 3581.
83 Camelio v. American Federation, 137 F.3d 666, 671-72 (1st Cir. 1998).
84 18 U.S.C. 1961, 1956(c)(7)(A).
85 18 U.S.C. 2, 3, 4, 371, 1512(k).
86 18 U.S.C. 1512(h).
87 18 U.S.C. 1512(f), (g).
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Obstructing Federal Courts (18 U.S.C. 1503)
The Omnibus Provision
Unlike §1512, §1503 does not to apply to the obstruction of congressional or administrative
proceedings.88 Nor, in most circuits at least, does it not apply to obstruction of judicial
proceedings unless the impeded proceedings are pending.89 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).90
Subsection 1503(b) calls for murder and manslaughter to be punished as those crimes are
punished when committed in violation of §§1111 and 1112;91 attempted murder, attempted
manslaughter, or any violation involving a juror called to hear a case relating to a class A or B
88 Both sections are discussed in Twenty-Fifth Survey of White Collar Crime: Obstruction of Justice, 47 AMERICAN
CRIMINAL LAW REVIEW 847 (2010).
89 United States v. Aguilar, 515 U.S. 593, 599 (1995), citing Pettibone v. United States, 148 U.S. 197, 207 (1893); but
see conflicted lower appellate court opinions cited infra footnote 100.
90 18 U.S.C. 1503(a).
91 18 U.S.C. 1111 outlaws murder within the special maritime and territorial jurisdiction of the United States. First
degree murder under §1111 is punishable by death or life imprisonment; second degree by imprisonment for any term
of years or for life, 18 U.S.C. 1111(b). 18 U.S.C. 1112 outlaws manslaughter within the special maritime and territorial
jurisdiction of the United States. Voluntary manslaughter under §1112 is punishable by imprisonment for not more than
10 years and a fine of not more than $250,000; involuntary manslaughter by imprisonment for not more than six years
and a fine of not more than $250,000.
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felony is punishable by imprisonment for not more than 20 years;92 and all other offenses by
imprisonment for not more than 10 years.93
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.”94
At least one court has held that the obstruction must also be material to the matters before the
judicial proceeding.95
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.”96 There is no requirement that the defendant’s endeavors succeed97 or even that they were
capable of succeeding (as long as the accused was unaware of the futility of his efforts to
obstruct).98
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.”99 The Supreme
Court’s observations, notwithstanding, the courts are somewhat divided over whether the
obstructed judicial proceedings must actually be pending.100
92 18 U.S.C. 1503(b)(2). Class A felonies are those punishable by imprisonment for any term of years or by life
imprisonment; Class B felonies are those punishable by a maximum term of imprisonment greater than 20 years, 18
U.S.C. 3581. All felonies are punishable by a fine of not more than $250,000 ($500,000 for organizations), 18 U.S.C.
3571.
93 18 U.S.C. 1503(b)(3).
94 United States v. Monus, 128 F.3d 376, 387 (6th Cir. 1997); see also United States v. Erickson, 561 F.3d 1150, 1159
(10th Cir. 2009); United States v. Macari, 545 F.3d 517, 522-23 (7th Cir. 2008); United States v. Cueto, 151 F.3d 620,
633 (7th Cir. 1998); United States v. Brenson, 104 F.3d 1267, 1275 (11th Cir. 1997).
95 United States v. Thomas, 612 F.3d 1107, 1128-129 (9th Cir. 2010).
96 United States v. Aguilar, 515 U.S. 593, 599 (1995), quoting Pettibone v. United States, 148 U.S. 197, 206 (1893).
97 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.
98 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).
99 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. Ashqar, 582 F.3d 819, 823
(7th Cir. 2009); United States v. Johnson, 485 F.3d 1264, 1270 (11th Cir. 2007); United States v. Quattrone, 441 F.3d
153, 170-71 (2d Cir. 2006); United States v. Joiner, 418 F.3d 863, 868 (8th Cir. 2005); United States v. Weber, 320 F.3d
1047, 1051 (9th Cir. 2003).
100 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
(continued...)
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The courts may be at odds as well over whether the due administration of justice in §1503 may be
obstructed by corrupting a witness before a federal judicial proceeding or any other obstruction
covered by 18 U.S.C. 1512 or 1513. The Second Circuit held in 1991 that when Congress enacted
the more specific witness tampering and witness retaliation provisions of §§512 and 1513 it
intended to remove those crimes from the omnibus clause’s inventory of proscriptions.101 The
other circuits, to the extent they have later addressed the issue, disagree.102 Notwithstanding
opportunities to reconsider,103 the Second Circuit has apparently found it unnecessary to do so
thus far.
The specific kinds of misconduct which will provide the basis for a prosecution under the
omnibus clause of §1503 vary considerably.104 Subsection 1515(c), however, makes it clear that
(...continued)
or grand jury proceeding constituting the administration of justice ... ”); accord United States v. Erickson, 561 F.3d
1150, 1159 (10th Cir. 2009); United States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003); United States v. Fassnacht,
332 F.3d 440, 447 (7th Cir. 2003); United States v. Steele, 241 F.3d 302, 304-5 (3d Cir. 2001); United States v. Sharpe,
193 F.3d 852, 864 (5th Cir. 1999); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999); United States v.
Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1966); United States v. Littleton, 76 F.3d 614, 618-19 (4th Cir. 1996); contra
United States v. Novak, 217 F.3d 566, 571-72 (8th Cir. 2000); see also United States v. Vaghela, 169 F.3d 729, 732-34
(11th Cir. 1999)(pendency not necessarily required in cases of conspiracy to violate Section 1503); United States v.
Bruno, 383 F.3d 65, 87 (2d Cir. 2004)(proceedings need not be pending but there must be evidence from which to infer
that they were anticipated in the case of a conspiracy to violate Section 1503).
101 United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991).
102 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).
103 United States v. Kumar, 617 F.3d 612, 622 n. 9 (2d Cir. 2010)(internal citations omitted)(“The government may
have charged Richards with violating §1512(c)(2) instead of §1503(a) due to its concern that a §1503(a) charge would
raise a ‘Masterpol issue.’ In Masterpol, we held that witness tampering is prohibited only by §1512, and is not covered
by §1503’s omnibus clause. The government’s concern with respect to Richards’s obstruction charge was misplaced.
While Masterpol might have presented an obstacle for indicting Kumar, who attempted to bribe a witness, as
previously noted, Kumar is not appealing his obstruction of justice conviction. Unlike Kumar, Richards did not engage
in witness tampering. Thus, Masterpol is not implicated here”); United States v. Bruno, 383 F.3d 65, 87 n.16 (2d Cir.
2004)(“Because the defendants were prosecuted for lying to federal investigators instead of federal grand jury
witnesses, we had no occasion to address the issue discussed above regarding our conclusion in Masterpol that charges
of lying to, or trying to influence grand jury witnesses should be prosecuted under §1512”); United States v. Genao,
343 F.3d 578, 585 (2d Cir. 2003)(“We hold that the indictment in the instant case does not set forth a sufficient nexus
between Genao’s false statements and a federal judicial proceeding so as to establish a violation of §1503”); United
States v. Schwarz, 283 F.3d 76, 110 (2d Cir. 2002); United States v. Quattrone, 441 F.3d 153, 169-73 (2d Cir.
2006)(finding evidence sufficient to establish a nexus between the defendant’s destruction of documents and the grand
jury proceedings for which they had been subpoenaed).
104 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.
(continued...)
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bona fide legal advice will not provide the basis for a prosecution under the omnibus clause of
§1503 nor under any other obstruction of justice prohibition found in the same chapter for that
matter.105
Interfering with Jurors or Judicial Officials (18 U.S.C. 1503)
Before 1962, bribing a federal judge or juror might be prosecuted either under section 1503 or
under the bribery statute, 18 U.S.C. 206 (1958 ed.).106 Then in 1962 the corresponding provision
in §206 disappeared when Congress revised federal bribery statutes and merged a number of
individual sections into the general proscriptions now found in 18 U.S.C. 201. That §201 applies
to bribery involving judges and certainly to bribery involving jurors seems clear from its
language,107 its history,108 and the limited available case law.109 Since 1962, however, such cases
appear to have been prosecuted in most instances under §1503 alone.110
(...continued)
Muhammad, 120 F.3d 688 (7th Cir. 1997)(civil trial juror’s solicitation of a bribe); United States v. Atkin, 107 F.3d
1213 (6th Cir. 1997) (promising to bribe a trial judge).
105 “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).
106 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).
107 “[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).
108 “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).
109 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 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”).
110 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).
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Bribery and other forms of jury corruption fall within the proscriptions of the omnibus clause of
§1503,111 but are more explicitly condemned in the remainder of the section.112 On its face, the
section covers both tampering with (and retaliation against) federal grand jurors, petite jurors,
magistrates, and other judicial officials. The conduct it outlaws may take the form of threats,
force, threatening letters or other communication, corruption (e.g., bribery), or in retaliation,
personal injury or property damage. Yet the offense is only complete if the misconduct is
perpetrated in an endeavor to influence, intimidate or impede a juror or judicial official or on
account of the performance of the duties of such a position.
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.113 Thus,
the offense is punishable by imprisonment for not more than 20 years, if it involves either an
attempted killing or is committed against a juror in a case involving a class A or B felony, i.e. a
felony punishable by death, life imprisonment or a maximum term of imprisonment of at least
twenty-five years.114 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 §1503 that involves voluntary manslaughter is
no more severe than for a violation that does not involve a killing (10 years) and less severe (6
years) if the killing is involuntary manslaughter. Each of the offenses other than murder is also
subject to a fine of not more than $250,000 (not more than $500,000 for an organization).115
111 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).
112 “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).
113 The punishment for an offense under this section is—(1) in the case of a killing, the punishment provided in sections
1111 and 1112; (2) in the case of an attempted killing, or a case in which the offense was committed against a petit
juror and in which a class A or B felony was charged, imprisonment for not more than 20 years, a fine under this title,
or both; and (3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both,” 18 U.S.C.
1503(b).
114 18 U.S.C. 3559.
115 18 U.S.C. 1503(b), 1111, 1112, 3571.
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Auxiliary Offenses and Liability
Conspiracy to violate §1503 can only be prosecuted under the general conspiracy statute, 18
U.S.C. 371.116 Section 1503 has no individual conspiracy provision. Section 1503 offenses are
RICO predicate offenses and consequently are money laundering predicate offenses.117 Those
who aid and abet a §1503 offense are liable as principals and are punishable as if they committed
the offense themselves.118 An individual who knows that another has committed a §1503 offense
and nevertheless assists the offender in order to hinder his capture, trial or punishment is in turn
punishable as an accessory after the fact.119 And an individual who affirmatively conceals the
commission of a §1503 by another is guilty of misprision.120
Section 1503 contains no explicit statement of extraterritorial application. Nevertheless, the
courts seem likely to conclude that overseas misconduct in violation of §1503 may be prosecuted
in this country.121
Subsection 1512(i) establishes venue for prosecution under §1512 or §1503 in any district where
the obstruction occurs or where the obstructed proceeding occurs or is to occur. The subsection
was enacted to resolve a conflict among the circuits on the question of whether venue for a
prosecution of either of the two sections was proper in the district of the obstructed proceeding.122
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, 123 but left for
another day the question of whether venue might be proper in a district where the effect of the
offense is felt.124 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.”125
116 E.g., United States v. Bruno, 383 F.3d 65, 87-88 (2d Cir. 2004).
117 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).
118 18 U.S.C. 2.
119 18 U.S.C. 3.
120 18 U.S.C. 4.
121 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) (“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”).
122 United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991); United States v. Allen, 24 F.3d 1180, 1183 (10th Cir.
1994).
123 United States v. Cabrales, 524 U.S. 1, 7-8 (1998); United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999).
124 United States v. Rodriguez-Moreno, 526 U.S. at 279 n.2.
125 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).
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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.126 However, it deals primarily with obstructing congressional or federal
administrative proceedings, condemning:
I. Whoever
II. A. corruptly, or
B. by threats or
C. force, or
D. by any threatening letter or communication
III. A. influences,
B. obstructs, or
C. impedes or
D. endeavors to
1. influence,
2. obstruct, or
3. impede
IV. A. 1. the due and proper administration of the law under which
2. any pending proceeding is being had
3. before any department or agency of the United States, or
B. 1. the due and proper exercise of the power of inquiry under which
2. any inquiry or investigation is being had
3. by
a. either House, or
b. any committee of either House or
c. any joint committee of the Congress
shall be fined under this title or imprisoned not more than 5 years (not more than 8 years if
the offense involves domestic or international terrorism), or both.127
Prosecutions under §1505 have been relatively few, at least until recently, and most of these arise
as obstructions of administrative proceedings.128 “The crime of obstruction of [such] proceedings
126 “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.
127 18 U.S.C. 1505. Under 18 U.S.C. 3571, felonies are punishable by a fine of not more than $250,000 (not more than
$500,000 if the offender is an organization).
128 E.g., United States v. Safavian, 528 F.3d 957, 967-68 (D.C. Cir. 2008); United States v. Kay, 513 F.3d 432, 454 (5th
Cir. 2007); United States v. Blackwell, 459 F.3d 739, 761 (6th Cir. 2006); United States v. Quattrone, 441 F.3d 153, 174
(2d Cir. 2006); United States v. Bhagat, 436 F.3d 1140, 1146 (9th Cir. 2006).
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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.”129
Perhaps due to the breadth of judicial construction, the question of what constitutes a pending
proceeding has arisen most often. Taken as a whole, the cases suggest that a “proceeding”
describes virtually any manner in which an administrative agency proceeds to do its business. The
District of Columbia Circuit, for example, has held that an investigation by the Inspector General
of the Agency for International Development may qualify as a “proceeding” for purposes of
§1505. In doing so, it rejected the notion “that §1505 applies only to adjudicatory or rule-making
activities, and does not apply to wholly investigatory activity.”130 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.131 The courts seem to see comparable breadth in the
congressional equivalent (“obstructing the due and proper exercise of the power of inquiry” by
Congress and its committees).132
129 United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991), citing United States v. Sutton, 732 F.2d 1483, 1490 (10th
Cir. 1984) and United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988); see also United States v. Blackwell, 459
F.3d 739, 761-62 (6th Cir. 2006); United States v. Quattrone, 441 F.3d 153, 174 (2d Cir. 2006); United States v.
Bhagat, 436 F.3d 1140, 1147 (9th Cir. 2006); United States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007).
130 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.
131 United States v. Quattrone, 441 F.3d 153, 175 (2d Cir. 2006)(“Quattrone’s Brief could be read as raising a
distinction between the informal and formal stages of the SEC investigation and whether criminal liability for
obstructing an agency ‘proceeding’ can only arise in the context of the latter. In our view, that argument comes up
short”); United States v. Technic Services, Inc., 314 F.3d 1031, 1044 (9th Cir. 2002)(“However, the record shows that
TSI’s conduct, while removing the asbestos at the pulp mill, was under investigation by the EPA at the relevant time ...
An investigation into a possible violation of the Clean Air Act or Clean Water Act, which could lead to a civil or
criminal proceedings is a kind of proceeding”); United States v. Leo, 941 F.2d 181, 198-99 (3d Cir. 1991)(“the
government ... argues that the agency that Badolate obstructed acted under the direction of the Army’s contracting
officer, who had the authority to make adjudications on behalf of the Defense Department.... Other courts of appeals
have broadly construed the term ‘proceeding’ as that term is used in §1505. The Sixth Circuit, in United States v.
Fruchtman, 421 F.2d 1019, 1021 (6th Cir. 1970) rejected the contention that the word ‘proceedings’ refers only to those
steps before a federal agency that are judicial or administrative in nature. The Tenth Circuit, in United States v.
Browning, Inc., 572 F.2d 720, 724 (10th Cir. 1978), wrote: ‘In sum, the term proceeding is not ... limited to something
in the nature of a trial. The growth and expansion of agency activities have resulted in a meaning being given to
proceeding which is more inclusive and which no longer limits itself to formal activities in a court of law. Rather, the
investigation or search for the true facts ... is not to be ruled as a non-proceeding simply because it is preliminary to
indictment and trial.’ See also ... Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966)(‘Proceedings before a
governmental department or agency simply mean proceeding in the manner and form prescribed for conducting
business before the department or agency ... ’). Given the broad meaning of the word ‘proceeding’ and the Defense
Contract Audit Agency’s particular mission, we agree with the government that when Badolate obstructed Stern’s
search for the true purchase order dates, Badolate obstructed a proceeding within the meaning of §1505”).
132 United States v. Mitchell, 877 F.2d 294, 300-301 (4th Cir. 1989)(“The question of whether a given congressional
investigation is a ‘due and proper exercise of the power of inquiry’ for purposes of [section] 1505 can not be answered
by a myopic focus on formality. Rather, it is properly answered by a careful examination of all the surrounding
circumstances. If it is apparent that the investigation is a legitimate exercise of investigative authority by a
congressional committee in an area within the committee’s purview, it should be protected by [section] 1505. While
formal authorization is certainly a factor that weighs heavily in this determination, its presence or absence is not
dispositive. To give [section 1505] the protective force it was intended, corrupt endeavors to influence congressional
investigations must be proscribed even when they occur prior to formal committee authorization”).
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In the case of either congressional or administrative proceedings, §1505 condemns only that
misconduct which is intended to obstruct the administrative proceedings or the due and proper
exercise of the power of inquiry.133 In order to overcome judicially-identified uncertainty as to the
intent required,134 Congress added a definition of “corruptly” in 1996: “As used in §1505, the
term ‘corruptly’ means acting with an improper purpose, personally or by influencing another,
including making a false or misleading statement, or withholding, concealing, altering, or
destroying a document or other information,” 18 U.S.C. 1515(b). Examples of the type of conduct
that has been found obstructive vary.135
Section 1505 offenses are not RICO or money laundering predicate offenses.136 Section 1505 has
neither separate conspiracy provision nor an explicit exterritorial jurisdiction provision. However,
conspiracy to obstruct administrative or congressional proceedings may be prosecuted under 18
U.S.C. 371,137 and the courts would likely find that overseas violations of §1505 may be tried in
this country.138 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.139
Retaliating Against Federal Witnesses
(18 U.S.C. 1513)
Congress outlawed retaliation against federal witnesses under §1513 at the same time it outlawed
witness tampering under §1512.140 Although somewhat more streamlined, §1513 shares a number
133 United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991); United States v. Mitchell, 877 F.2d at 299; United States v.
Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988).
134 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).
135 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).
136 18 U.S.C. 1961(1), 1956(c)(7).
137 E.g., United States v. Blackwell, 459 F.3d 739, 748 (6th Cir. 2006).
138 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”).
139 18 U.S.C. 2, 3, 4. E.g., United States v. Leo, 941 F.2d 181, 184 (3d Cir. 1991).
140 P.L. 97-291, 96 Stat. 1249, 1250 (1982).
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of attributes with §1512. The definitions in §1515 apply to both sections.141 Consequently, the
prohibitions apply to witnesses in judicial, congressional, and administrative proceedings.142
There is extraterritorial jurisdiction over both offenses.143 In slightly different terms, both protect
witnesses against murder and physical abuse—committed, attempted, conspired, or threatened.
Offenses under the two are comparably punished.
Section 1513 prohibits witness or informant retaliation in the form of killing, attempting to kill,144
inflicting or threatening to inflict bodily injury, damaging or threatening to damage property,145
and conspiracies to do so.146 It also prohibits economic retaliation against federal witnesses, but
only witnesses in court proceedings and only on criminal cases.147 It does not reach economic
141 18 U.S.C. 1515(a).
142 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”).
143 18 U.S.C. 1512(h), 1513(d).
144 “(a) Whoever kills or attempts to kill another person with intent to retaliate against any person for—(A) the
attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other
object produced by a witness in an official proceeding; or (B) providing to a law enforcement officer any information
relating to the commission or possible commission of a Federal offense or a violation of conditions of probation
supervised release, parole, or release pending judicial proceedings—shall be punished as provided in paragraph (2). (2)
The punishment for an offense under this subsection is—(A) in the case of a killing, the punishment provided in
sections 1111 and 1112; and (B) in the case of an attempt, imprisonment for not more than 30 years.... (c) If the
retaliation occurred because of attendance at or testimony in a criminal case, the maximum term of imprisonment
which may be imposed for the offense under this section shall be the higher of that otherwise provided by law or the
maximum term that could have been imposed for any offense charged in such case,” 18 U.S.C. 1513(a),(c).
145 “(b) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the
tangible property of another person, or threatens to do so, with intent to retaliate against any person for—(1) the
attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other
object produced by a witness in an official proceeding; or (2) any information relating to the commission or possible
commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending
judicial proceedings given by a person to a law enforcement officer; or attempts to do so, shall be fined under this title
or imprisoned not more than 20 years, or both. (c) If the retaliation occurred because of attendance at or testimony in a
criminal case, the maximum term of imprisonment which may be imposed for the offense under this section shall be the
higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged
in such case,” 18 U.S.C. 1513(b),(c).
146 “Whoever conspires to commit any offense under this section shall be subject to the same penalties as those
prescribed for the offense the commission of which was the object of the conspiracy,” 18 U.S.C. 1513(f). Conspiracy to
violate §1513 may be prosecuted alternatively under 18 U.S.C. 371, e.g., United States v. Templeman, 481 F.3d 1263,
1264 (10th Cir. 2007). In either case, a conspirator is liable for a violation of §1513 committed by a co-conspirator in
foreseeable furtherance of their common scheme, United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009).
147 “(e) Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference
with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful
information relating to the commission or possible commission of any Federal offense, shall be fined under this title or
imprisoned not more than 10 years, or both,” 18 U.S.C. 1513(e). The placement of subsection 1513(c)—after violent
proscriptions of subsections 1513(a) and 1513(b), but before the economic retaliation proscription of subsection
1513(e)—may raise some question over whether subsection(c) provides an alternative sentencing provision for
subsection 1513(f). Subsection 1513(c) states, “If the retaliation occurred because of attendance at or testimony in a
criminal case, the maximum term of imprisonment which may be imposed for the offense under this section shall be the
higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged
in such case.”
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retaliation against witnesses on the basis of information relating to the violations of supervised
release, bail, parole, or probation conditions.
To satisfy the assault prong of §1513, the government must prove that the defendant bodily
injured another in retaliation for the victim’s testimony or service as a federal informant.148 The
extent of the injuries need not be extensive,149 nor in the case of a threat even carried out.150 As a
general rule, the intent to retaliate need not have been the sole motivation for the attack.151
Section 1513 offenses are RICO predicate offenses and consequently money laundering predicate
offenses.152 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.153 Those
who aid and abet a §1513 offense are liable as principals and are punishable as if they committed
the offense themselves.154 An individual who knows another has committed a §1513 offense and
nevertheless assists the offender in order to hinder his capture, trial or punishment is in turn
punishable as an accessory after the fact.155 And an individual who affirmatively conceals the
commission of a §1513 by another is guilty of misprision.156
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.157
148 United States v. Draper, 553 F.3d 174, 180 (2d Cir. 2009)(“[T]o sustain a witness retaliation charge, the government
must establish three elements: One, the defendant engaged in conduct that caused or threatened a witness with bodily
injury; two, the defendant acted knowingly, with the specific intent to retaliate against the witness for information the
witness divulged to law enforcement authorities about a federal offense; and three, the officials to which the witness
divulged information were federal agents”); United States v. Tapia, 59 F.3d 1137, 1140 (11th Cir. 1995); United States
v. Bolen, 45 F.3d 140, 142 (7th Cir. 1995); United Sates v. Cofield, 11 F.3d 413, 419 (4th Cir. 1994); United States v.
Beliveau, 802 F.2d 553, 562 (1st Cir. 1986).
149 United States v. Cunningham, 54 F.3d 295, 299 (7th Cir. 1995).
150 United States v. Maggitt, 794 F.2d 590, 593-94 (5th Cir. 1986).
151 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”).
152 18 U.S.C. 1961(1), 1956(c)(7)(A).
153 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).
154 18 U.S.C. 2. E.g., United States v. Wardell, 591 F.3d 1279, 1292 (10th Cir. 2009).
155 18 U.S.C. 3.
156 18 U.S.C. 4.
157 18 U.S.C. 371. For addition discussion see, Twenty-Fifth Survey of White Collar Crime: Federal Criminal
Conspiracy, 47 AMERICAN CRIMINAL LAW REVIEW 561 (2010); CRS Report R41223, Federal Conspiracy Law: A Brief
Overview.
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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.158 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”159 by “deceit, craft or trickery,
or at least by means that are dishonest.”160 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.161
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.”162 Conspirators must be shown to have exhibited the same
level of intent as required for the underlying substantive offense.163 The overt act need only be
furtherance of the scheme; it need not be the underlying substance offense or even a crime at
158 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).
159 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).
160 Hammerschmidt v. United States, 265 U.S. at 188 (“To conspire to defraud the United States means primarily to
cheat the Government out of property or money, but also means to interfere with or obstruct one of its lawful
governmental functions by deceit, craft or trickery, or at least by means that are dishonest”); Glasser v. United States,
315 U.S. at 66 (“The indictment charges that the United States was defrauded by depriving it of its lawful
governmental functions by dishonest means; it is settled that this is a ‘defrauding ... ’”); United States v. Stewart, 590
F.3d 93, 109 (2d Cir. 2009)(“In order to establish a conspiracy-to-defraud-offense under 18 U.S.C. §371 as charged in
Count One of the indictment, a reasonable jury must have been able to conclude beyond a reasonable doubt ‘(1) [that
the defendants entered into an agreement (2) to obstruct a lawful function of the government [in this case the
administration and enforcement of SAMs] (3) by deceitful or dishonest means and (4) at least one overt act in
furtherance of the conspiracy’”).
161 Hammerschmidt v. United States, 265 U.S. at 188 (“It is not necessary that the government shall be subjected to
property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by
misrepresentation ... ”); United States v. World Wide Moving, 411 F.3d 502, 516 (4th Cir. 2005); United States v.
Goldberg, 105 F.3d 770, 773 (1st Cir. 1997); United States v. Ballistrea, 101 F.3d 827, 832 (2d Cir. 1996) (internal
citations omitted) (This “provision ‘not only reaches schemes which deprive the government of money or property, but
also is designed to protect the integrity of the United States and its agencies’”); United States v. Dean, 55 F.3d 640, 647
(D.C. Cir. 1995)(internal citations omitted)(If “the government’s evidence showed that Dean conspired to impair the
functioning of the department of the Housing and Urban Development, ‘no other form of injury to the Federal
Government need be established for the conspiracy to fall under §371’”); cf., United States v. Stewart, 590 F.3d at 109.
162 United States v. Snype, 441 F.3d 119, 142 (2d Cir. 2006); see also United States v. Agosto-Vega, 617 F.3d 541, 548
(1st Cir. 2010); United States v. Coleman, 609 F.3d 699, 703-704 (5th Cir. 2010); United States v. McNair, 605 F.3d
1152, 1195 (11th Cir. 2010); United States v. Mohamed, 600 F.3d 1000, 1007 (8th Cir. 2010); United States v. Wardell,
591 F.3d 1279, 1287 (10th Cir. 2009).
163 United States v. Feola, 420 U.S. 671, 686 (1975); United States v. Castro-Davis, 612 F.3d 53, 60 (1st Cir. 2010);
United States v. Wardell, 591 F.3d 1279, 1287 (7th Cir. 2006); United States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009);
United States v. Carbo, 572 F.3d 112, 116 (3d Cir. 2009).
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all.164 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.165
As noted earlier, a number of federal statues, §§1512 and 1513 among them, include within their
proscriptions a separate conspiracy feature that outlaws plots to violate the section’s substantive
provisions.166 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.167 Although §§1512 and 1513 provide an alternative means of
prosecuting a charge of conspiracy to violate their underlying prohibitions, the government may
elect to proceed under general conspiracy statute, 18 U.S.C. 371.
Contempt
Criminal Contempt of Court
The oldest of the general obstruction provisions is contempt. The crime of contempt of court
comes to us from antiquity. Blackstone speaks of the power to punish disturbances in the presence
of the king’s courts that existed before the Conquest,168 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.169 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.”170
Contemporary federal contempt is derived from statute, rule, and inherent or auxiliary authority.
Section 401 of title 18 of the United States Code notes the power of a federal court to punish by
fine or imprisonment misconduct committed in the presence of the court or by its officers and
disobedience of its orders.171 Rule 42 of the Federal Rules of Criminal Procedure supplies
164 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).
165 Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Heras, 609 F.3d 101, 110-11 (2d Cir.
2010); United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010); United States v. Merlino, 592 F.3d 22, 29 (1st Cir.
2010).
166 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.
167 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).
168 IV BLACKSTONE, COMMENTARIES OF THE LAWS OF ENGLAND 124 (1769).
169 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”).
170 1 Stat. 83 (1789).
171 “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
(continued...)
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procedures to be followed in such cases, other than those dealt with summarily. Section 402
provides for a jury trial when the allegations of criminal contempt also constitute separate federal
or state criminal offenses.172
Contempt may be civil or criminal. Civil contempt is coercive and remedial, calculated to compel
the recalcitrant to obey the orders of the court or to compensate an opponent aggrieved by the
failure to do so.173 Criminal contempt is punitive.174
A wide variety of obstructions of justice are punishable as criminal contempt of court. They
include:
- disobedience of a court order to provide handwriting exemplars,175
(...continued)
resistance to its lawful writ, process, order, rule, decree, or command,” 18 U.S.C. 401.
172 “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.
173 International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827-28 (1994); F.T.C. v. Trudeau, 579 F.3d
754, 769 (7th Cir. 2009)(internal citations omitted)(“Generally, civil contempt is remedial and for the benefit of the
complainant, while criminal contempt is punitive, to vindicate the authority of the court. In terms of monetary
sanctions, civil sanctions fall in two categories. They can compensate the complainant for this losses caused by the
contemptuous conduct. Or they can coerce the contemnor’s compliance with a court order. A coercive sanction must
afford the contemnor the opportunity to purge, meaning the contemnor can avoid punishment by complying with the
court order”).
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).
174 In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009)(“Imprisonment is an appropriate remedy for either civil or criminal
contempt, depending on how it is assessed, if the prison term is conditional and coercive, the character of the contempt
is civil; if it is backward-looking and unconditional it is criminal.... Similarly, a fine that punishes past conduct is
criminal, while a fine that accrues on an ongoing basis in response to noncompliance is civil”).
175 In re Solomon, 465 F.3d 114 (3d Cir. 2006).
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- violation of a temporary restraining order entered in unfair trade practices action,176
- unlawful disclosure by grand jurors of their vote or deliberations,177
-asset transfer in violation of a bankruptcy court’s asset freeze order,178
- refusing to testify before the grand jury,179
- false statement to a probation officer,180
- vulgar insults addressed to court,181
- violation of a condition of supervised release,182
- fraudulently sold business opportunities in violation of court-ordered Federal Trade
Commission consent decree,183
- refusing to testify at trial,184
- violation of restraining order prohibiting harassment of the bankruptcy court,185
- violation of the court’s witness sequestration order,186
- failure to appear at the supervised release revocation hearing,187
- attorney’s repeated failure to follow court’s instructions relating to the conduct of the
trial,188
- threatening jurors,189
- retaliating against a witness in violation of the court’s restraining order,190
- defendant’s contacting witnesses in violation of the court’s order.191
176 United States v. Love, 449 F.3d 1154 (11th Cir. 2006).
177 United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005).
178 United States v. Brennan, 395 F.3d 59 (2d Cir. 2005).
179 Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004).
180 United States v. Loudon, 385 F.3d 795 (2d Cir. 2004).
181 United States v. Marshall, 371 F.3d 42 (2d Cir. 2004).
182 United States v. Smith, 344 F.3d 479 (6th Cir. 2003).
183 United States v. Ferrara, 334 F.3d 774 (2003).
184 United States v. Kimble, 305 F.3d 480 (6th Cir. 2002).
185 United States v. Mourad, 289 F.3d 174 (1st Cir. 2002).
186 F.J. Hnashaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128 (9th Cir. 2001).
187 United States v. Bernardine, 237 F.3d 1279 (11th Cir. 2001).
188 United States v. Galin, 222 F.3d 1123 (9th Cir. 2000).
189 United States v. Rrapi, 175 F.3d 742 (9th Cir. 1999).
190 United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997).
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Criminal contempt comes in two forms, direct and indirect. Direct contempt involves misconduct
in the presence of the court and is punished to ensure the decorum of the court and the dignity of
the bench.192 Indirect contempt consists of those obstructions committed outside the presence of
the court.193 Direct contempt may be summarily punished; indirect contempt may not.194
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.”195 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.196 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,197 or a lawyer’s failure to present the court with a doctor’s
affidavit justifying his client’s absence,198 or a party’s efforts to influence a juror during breakfast
several floors removed from the courtroom,199 or a party’s failure to appear for depositions,200 or
encourage others to flood the court with e-mails.201 Each of these might be punished as criminal
contempt, but not summarily.
(...continued)
191 United States v. Grisanti, 116 F.3d 984 (2d Cir. 1997).
192 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).
193 United States v. Rangolan, 464 F.3d 321, 325 (2d Cir. 2006).
194 International Union, United Mineworkers v. Bagwell, 512 U.S. 821, 832, 827 n.2 (1994).
195 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.” United States v. Moncier, 571 F.3d 593, 598 (6th Cir. 2009)(“The
elements of criminal contempt are (1) the defendant engaged in misbehavior, (2) that the misbehavior obstructed the
administration of justice, (3) that the misbehavior occurred in the presence of the court, and (4) that defendant acted
with intent to obstruct”).
196 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).
197 In re Smothers, 322 F.3d 438, 440 (6th Cir. 2003); In re Gates, 600 F.3d 333, 339 (4th Cir. 2010).
198 United States v. Cooper, 353 F.3d 161, 163-64 (2d Cir. 2003).
199 United States v. Rangolan, 464 F.3d 321, 327-28 (2d Cir. 2006) .
200 Smith v. Smith, 145 F.3d 335, 342 (5th Cir. 1998).
201 F.T.C. v. Trudeau, 606 F.3d 382, 390 (7th Cir. 2010).
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On the other hand, a witness who in the presence of the court refuses to testify at trial may be
summarily punished for contempt,202 as may an individual who urinates on the courtroom floor in
the presence of the court,203 or who addresses the court or the jury in vulgar and insulting
terms.204
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.205
Misbehavior by court officers. Subsection 401(2) is cited most often for the proposition that
attorneys are not officers of the court for purposes of the subsection.206 Otherwise, it is seldom
prosecuted or cited. 207
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.”208 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
order.209 Obstruction of justice is not an element of the offense,210 but a willful intent is, which
means that the defendant must have known of the order and have deliberately or recklessly
violated it.211 Mere negligence is not enough.212 A person may not be found in criminal contempt
202 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).
203 United States v. Perry, 116 F.3d 952, 956 (1st Cir. 1997).
204 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.
205 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).
206 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).
207 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)).
208 18 U.S.C. 401(3). United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009)(“[T]he elements of criminal contempt
under 18 U.S.C. §401(3) are: (1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to
violate the order”); see also United States v. Hernandez, 600 F.3d 333, 338-39 (4th Cir. 2010).
209 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).
210 United States v. Galin, 222 F.3d 1123, 1127 (9th Cir. 2000); United States v. Griffin, 84 F.3d 820, 832 (7th Cir.
1996).
211 United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009)(“For a criminal contempt conviction to stand, the evidence
... must show both a contemptuous act and a willful, contumacious, or reckless state of mind.... ‘[W]illfulness’ in the
context of the criminal contempt statute at a minimum requires a finding of recklessness, which requires more than a
finding that an individual ‘reasonably should have known’ that the relevant conduct was prohibited”); see also 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
(continued...)
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of an unclear order of the court,213 but disobedience of an invalid order is nonetheless punishable
as criminal contempt.214
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.215 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.216 The right to
be prosecuted by the United States Attorney or some other neutral prosecutor is reenforced by the
Rule,217 but may be waived by the person charged.218
Although the double jeopardy bar applies to criminal contempt,219 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.220 Moreover, the double jeopardy prohibition does bar sequential prosecution of
criminal contempt and substantive offenses arising out the same events.221
(...continued)
(D.C. Cir. 1997).
212 United States v. Mottweiler, 82 F.3d 769, 772 (7th Cir. 1996).
213 Ashcroft v. Conoco, Inc., 218 F.3d 288, 299 (4th Cir. 2000).
214 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).
215 F.R.Crim.P. 42(a)(1).
216 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).
217 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”).
218 In re Reed, 161 F.3d 1311, 1317 (11th Cir. 1998).
219 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.
220 United States v. Lippitt, 180 F.3d 873, 879 (7th Cir. 1999); United States v. Marquardo, 149 F.3d 36, 41 (1st Cir.
1998).
221 United States v. Forman, 180 F.3d 766, 768-69 (6th Cir. 1999); United States v. Landerman, 109 F.3d 1053, 1068
(5th Cir. 1997). Of course, the same events may lead to prosecution under both section 401 and other obstruction
offenses, e.g., United States v. Henry, 519 F.3d 68, 71-74 (1st Cir. 2008); United States v. Senffner, 280 F.3d 755, (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. 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).
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Unless summarily punished, sentencing for contempt begins with the Sentencing Guidelines.222
The guideline for contempt, however, is not always easily discerned. 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 §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.223 It goes on to say that in some instances the general obstruction of justice guideline or
the theft guideline may be most analogous for violations of §401.224 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.225
The Guidelines ordinarily operate beneath the maximum penalties established by statute. Section
401, however, speaks of neither set a maximum term of imprisonment nor a maximum fine level.
It simply states that criminal contempt may be punished by imprisonment or by a fine or both.
This approach has implications for things like probation, special assessments, and terms of
supervised release that turn upon the maximum term of imprisonment associated with a particular
offense. Probation, for example, is unavailable to those charged with a Class A or B felony,226
222 In United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court held unconstitutional but severable the
statutory provision that made the Sentencing Guidelines binding on federal courts. The results recommended by
application of the Guidelines remain one of several statutory factors which federal sentencing courts must consider, 18
U.S.C. 3553. In part because the other factors are very general while the Guidelines are very fact-specific, the
Guidelines continue to carry great weight, cf., Gall v. United States, 552 U.S. 38, 49-50 (2007)(“[A] district court
should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of
administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial
benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an
opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the
§3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume
that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented. If he
decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major
departure should be supported by a more significant justification than a minor one. After settling on the appropriate
sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing”); United States v. Miner, 544 F.3d 930, 932-33 (8th Cir. 2008)(affirming a sentence for
contempt which calculated the sentencing range under the Guidelines and then considered the other factors listed in
§3553(a)).
223 U.S.S.G §2J1.1, Commentary: Application Note 1.
224 Id.
225 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).
226 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
(continued...)
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special assessments range from $5 to $100 depending on the classification of the offense for
which an individual is convicted,227 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.228
When the question has been raised, prosecutors have sometimes argued that criminal contempt
under §401 should be considered a class A felony, since it is punishable by any term of
imprisonment up to and including life imprisonment.229 Defendants have argued alternatively that
criminal contempt under §401 should be (1) considered neither felony nor misdemeanor nor petty
offense, or (2) classified according to the sentence imposed or the sentencing maximum the court
agrees to accept, as is done when the question is whether a contempt case must be tried before a
jury.230 The Ninth Circuit chose a something of a middle ground and classified criminal contempt
according to the maximum sentence for the most analogous offense.231 The Eleventh Circuit, on
the other hand, concluded that contempt is sui generis and cannot accurately be classified as
either a felony or misdemeanor of any stripe.232
Contempt of Congress
Statutory Contempt of Congress
Contempt of Congress is punishable by statute and under the inherent powers of Congress.233
Congress has not exercised its inherent contempt power for some time.234 The statutory contempt
of Congress provision, 2 U.S.C. 192, has been employed only slightly more often and rarely in
recent years. Much of what we know of the offense comes from Cold War period court decisions.
Parsed to its elements, §192 states that
I. Every person
II. summoned as a witness
(...continued)
more, 18 U.S.C. 3559(a)(1), (2).
227 18 U.S.C. 3013.
228 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).
229 United States v. Love, 449 F.3d 1154, 1158 (11th Cir. 2006); United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir.
1996); see also United States v. Broussard, 611 F.3d 1069, 1071 (9th Cir. 2010) and United States v. Cohn, 586 F.3d
844, 846 (11th Cir. 2009)(each noting that the lower court had classed a contempt conviction as a Class A felony
because it had no statutory maximum penalty).
230 Id.
231 United States v. Broussard, 611 F.3d 1069, 1072 (9th Cir. 2010).
232 United States v. Cohn, 586 F.3d 844, 848 (11th Cir. 2009). The Eleventh Circuit found it unnecessary to decide the
question since any error committed when the lower court sentenced the defendant to incarceration for 45 days and a
five-year term of supervised released had been induced by the defendant, United States v. Love, 449 F.3d 1154, 1157
(11th Cir. 2006).
233 2 U.S.C. 192-196; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); McGrain v. Daugherty, 273 U.S. 135 (1927).
234 For a more extensive discussion of contempt of Congress see, CRS Report RL34097, Congress’s Contempt Power:
Law, History, Practice, and Procedure.
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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.235
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.236 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.237
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.238
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.239
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.”240 The statute outlaws “refusal” to answer pertinent questions, but
235 2 U.S.C. 192. By operation of 18 U.S.C. 3571 the maximum fine is $100,000 ($200,000 for organizations).
236 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 ... ”).
237 Sinclair v. United States, 279 U.S. 263, 296 (1929).
238 Gojack v. United States, 384 U.S. 702, 713 (1966); Sinclair v. United States, 279 U.S. 263, 296 (1929).
239 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”).
240 Russell v. United States, 369 U.S. 749, 755-56 (1962), citing Sinclair v. United States, 279 U.S. 263, 273 (1929).
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the courts have yet to say whether the proscription includes instances where the refusal takes the
form of false or deceptive testimony: There is no word on whether the section outlaws any refusal
to answer honestly or only unequivocal obstinacy. On at least two occasions, however, apparently
the courts have accepted nolo contendere pleas under Section 192 based upon a false statement
predicate.241
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.242 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.243
The Fifth Amendment protects witnesses against self-incrimination.244 The protection reaches
wherever incriminating testimonial communication is compelled whether in criminal proceedings
or elsewhere.245 It covers communications that are either directly or indirectly incriminating, but
only those that are “testimonial.”246 Organizations enjoy no Fifth Amendment privilege from self-
incrimination,247 nor in most cases do the custodians of an organization’s documents unless their
act of producing the subpoenaed documents is itself an incriminating testimonial
communication.248 An individual’s voluntarily created papers and records are by definition not
241 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
Judiciary, 98th Cong., 1st Sess. at 29 (1983)(prepared statement of Stanley Brand).
242 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).
243 McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Bryan, 339 U.S. 323, 332-33 (1950).
244 U.S. Const. Amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself ... ”).
245 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”).
246 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).
247 Braswell v. United States, 487 U.S. 99, 107-108 (1988).
248 Under the act of production doctrine, a custodian’s testimonial act of turning over documents in response to a
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compelled communications and thus ordinarily fall outside the privilege as well.249 Moreover, the
protection may be waived if not invoked,250 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.251
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.252 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.253 In cases of such imprecision, the government’s
assertion of the pertinence necessary for conviction of statutory contempt may become suspect.254
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.255 The Supreme Court in Watkins confirmed that witness in congressional proceedings
are entitled to Fourth Amendment protection, but did not explain what such protection entails.256
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.”257 At the same time, it pointed out that as in the case of a grand jury inquiry
(...continued)
subpoena is entitled to Fifth Amendment protection if his action—by confirming the existence of the documents, or his
control of them, or his belief that they came within the description of the documents sought in the subpoena—would
incriminate him or provide a link in the chain leading to his incrimination, United States v. Hubbell, 530 U.S. 27, 36-38
(2000).
249 Fisher v. United States, 425 U.S. 391, 409-10 (1976); United States v. Doe, 465 U.S. 605, 611-12 (1984).
250 Hutcheson v. United States, 369 U.S. 599, 608-609 (1962); Emspak v. United States, 349 U.S. 190, 195-96 (1955).
251 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).
252 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”);.
253 Watkins v. United States, 354 U.S. 178, 196-206 (1957).
254 United States v. Rumely, 345 U.S. 41, 46-8 (1953); Watkins v. United States, 354 U.S. 178, 207-16 (1957).
255 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 ... ”).
256 Watkins v. United States, 354 U.S. 178, 188 (1957)(Witnesses “cannot be subjected to unreasonable searches and
seizures”).
257 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).
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probable cause is not a prerequisite for a reasonable subpoena.258 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.”259 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.260 Contempt convictions have been overturned, however, when a
Fourth Amendment violation taints the underlying subpoena or question.261
Perhaps most unsettled of all is the question the extent to which, if any, the separation of powers
doctrine limits the subpoena power of Congress over members and former members of the other
branches of government. As a practical matter, however, the other branches of government
ultimately control the prosecution and punishment for statutory contempt of Congress, at least
under the current state of the law. Section 194 states that the United States Attorney to whom
Congress refers a violation of §192 has a duty to submit the matter to the grand jury.262 Should a
258 “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).
259 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.
260 McPhaul v. United States, 364 U.S. 372, (1960)(“It thus appears that the records called for by the subpoena were not
‘plainly incompetent or irrelevant to any lawful purpose (of the Subcommittee) in the discharge of (its) duties,’ but, on
the contrary were reasonably ‘relevant to the inquiry.’ Finally, petitioner contends that the subpoena was so broad as to
constitute an unreasonable search and seizure in violation of the Fourth Amendment of the Constitution. ‘(A)dequacy
or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.
The Subcommittee’s inquiry here was a relatively broad one ... and the permissible scope of materials that could
reasonably be sought was necessarily equally broad”), citing the Fourth Amendment standard for administrative
searches from Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). See also Packwood v. Senate
Select Committee on Ethics, 510 U.S. 1319, 1320 (1994)(“As we stated in Oklahoma Press Publishing Co. v. Walling
determining whether a subpoena is overly broad ‘cannot be reduced to formula; for relevancy and adequacy or excess
in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope the inquiry’”)(Ch. J.
Rehnquist denying the application for a stay pending appeal to the Court of Appeals of a District Court order enforcing
a congressional subpoena duces tecum)(internal citations omitted).
261 United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972).
262 “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
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grand jury indictment be forthcoming further prosecution is at the discretion of the Executive
Branch in proceedings presided over by the Judicial Branch.263
The rules governing the congressional hearing may also afford a witness the basis to object to a
congressional summons or interrogation and to defend against a subsequent prosecution for
violation of §192. No successful prosecution is possible if the congressional tribunal in question
has failed to follow its own rules to the witness’s detriment.264 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,265 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 $1,000.266 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.267
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.268 The statute has always
been recognized as a supplement rather than a replacement of the inherent power.269 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
(...continued)
Attorney’s duty to refer the case to the grand jury is likewise discretionary.
263 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”).
264 Yellin v. United States, 374 U.S. 109, 123-24 (1963).
265 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.
266 “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.
267 In 1984, Congress established a uniform fine schedule which amends individual statutory maximum fine provisions
like those of Section 192 sub silentio, 18 U.S.C. 3571. Under the schedule, class A misdemeanors (crimes punishable
by imprisonment for not more than one year, 18 U.S.C. 3559) are punishable by a fine of not more than $100,000 for
individuals and not more than $200,000 for organizations, 18 U.S.C. 3571(b), (c).
268 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).
269 Jurney v. MacCracken, 294 U.S. 125, 151 (1935); In re Chapman, 166 U.S. 661, 671-72 (1897).
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statutory alternatives more regularly.270 The inherent power lay dormant and does not appear to
have been invoked any time within the last half century.271
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.272
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.273
Obstruction of Justice by Violence or Threat
In addition to the basic federal crimes of obstruction of justice, federal law features a host of
criminal statutes that proscribe various obstructions according to the obstructive means used, be it
physical violence, bribery, property destruction, or deception. Thus, quite aside from the general
obstruction provisions of §§1512, 1513, 1505, and 1503, several federal statutes outlaw use of
threats or violence for the purpose of obstruct federal government activities.
Violence and Threats Against Officials, Former Officials, and
Their Families (18 U.S.C. 115)
Section 115 prohibits certain acts of violence against judges, jurors, officials, former officials, and
their families in order to impede or to retaliate for the performance of their duties. The section
consists of three related offenses. One is designed to protect the families of judges and officials
against threats and acts of violence;274 another to protect judges and officials from threats;275 and
a third to protect former judges, former officials and their families from retaliatory threats and
acts of violence.276 In more precise terms, they declare:
270 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).
271 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).
272 18 U.S.C. 6001-6005.
273 28 U.S.C. 1365.
274 18 U.S.C. 115(a)(1)(A).
275 18 U.S.C. 115(a)(1)(B).
276 18 U.S.C. 115(a)(2).
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(1)(Families)
I. Whoever
II. A. assaults
B. kidnaps,
C. murders,
D. attempts to assault, kidnap, or murder,
E. conspires to assault, kidnap, or murder, or
F. threatens to assault, kidnap, or murder
III. a member of the immediate family of
A. a federal judge,
B. a Member of Congress,
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).277
Subsection 115(a)(1)(A) only condemns violence against the families of federal officials, not
violence committed against the officials themselves.278 Subsection 115(b) makes kidnaping,
murder, and attempts and conspiracies to commit such offenses in violation of the section subject
to penalties imposed for those crimes when committed the officials themselves under other
sections of the Code, i.e., 18 U.S.C. 1201, 1111, 1113, and 1117.279 The penalties for assault are
calibrated according the seriousness of the assault. Simple assault carries a maximum penalty of
imprisonment for one year; assault involving physical contact or intent to commit another felony,
not more than 10 years; assault result in bodily injury, not more than 20 years; and assault
resulting in serious bodily injury or involving the use of dangerous weapon, not more than 30
277 18 U.S.C. 115(a)(1)(A).
278 United States v. Bennett, 368 F.3d 1343, 1352-354 (11th Cir. 2004), vac’d on other grounds, 543 U.S. 1110 (2005).
279 18 U.S.C. 115(b)(2), (3).
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years.280 Except in the case of simple assault or murder, the offenses are subject to a fine of not
more than $250,000; simple assault carries a fine of not more than $100,000.281
(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
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.282
Subsection 115(a)(1)(B) protects, among others, “an officials whose killing would be a crime
under [section 1114].” Section 1114, in turn, outlaws killing any “officer or employee of the
United States,” which has lead one court to conclude that subsection 115(a)(1)(B) protects any
federal officer or employee.283
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.284 The
280 18 U.S.C. 115(b)(1).
281 18 U.S.C. 115(b)(1), (2), (3), 1201, 1111, 1113, 1117, 3571.
282 18 U.S.C. 115(a)(1)(B), (b)(4).
283 United States v. Bankoff, 613 F.3d 358, 372 (3d Cir. 2010).
284 United States v. Berki, 936 F.2d 529, 532-34 (11th Cir. 1991).
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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.285
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.286 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.”287
(3)(Former Officials)
I. Whoever
II. A. assaults
B. kidnaps,
C. murders,
D. attempts to assault, kidnap, or murder, or
E. conspires to assault, kidnap, or murder, or
III. A. a former federal judge,
B. a former Member of Congress,
C. the former President and any other former federal officer or employee, or
D. a member of the immediate family of such former judge, Member or individual
IV. on account of the performance of their former official duties
shall be punished as provided in subsection (b) as described above with respect to assaults,
kidnapings, and murders of members of the families of federal officials.288
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.289 The section’s
285 United States v. Veach, 455 F.3d 628, 632-34 (6th Cir. 2006).
286 United States v. Saunders, 166 F.3d 907, 913 n.6 (7th Cir. 1999)(“Those cases holding that the test should be an
objective speaker-based one include United States v. Schiefen, 139 F.3d 638, 639 (8th Cir. 1998) ... United States v.
Fulmer, 108 F.3d 1486, 1491-92 (1st Cir. 1997) ... United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.
1990) ... and United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984) ... Those cases treating the objective test as
recipient-based include United States v. Malik, 16 F.3d 345, 348 (2d Cir. 1994); and United States v. Maisoner, 484
F.2d 1356, 1358 (4th Cir. 1973)”).
287 United States v. Stewart, 403 F.3d 1007, 1016-19 (9th Cir. 2005), quoting, Virginia v. Black, 538 U.S. 343, 349-50
(2003); but see United States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009)(“Statements constitute a ‘true threat’ if an
ordinary reasonable recipient who is familiar with their context would interpret those statements as a threat to injury”).
288 18 U.S.C. 115(a)(2).
289 18 U.S.C. 1114 (“Whoever kills or attempts to kill any officer or employee of the United States or of any agency in
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coverage extends to government witnesses.290 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.291
Beyond these general prohibitions, federal law proscribes the murder, kidnaping, or assault of
Members of Congress, Supreme Court Justices, or the Cabinet Secretaries;292 and a number of
statutes outlaw assaults on federal officers and employees responsible for the enforcement of
particular federal statutes and programs.293
(...continued)
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”).
290 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).
291 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 [not more than 20 years if bodily injury is inflicted
or dangerous weapons used], or both”).
292 18 U.S.C. 351.
293 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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Obstruction of Justice by Bribery
Section 1512(b) outlaws witness tampering by corrupt persuasion. Several other federal statutes
outlaw bribery in one form or another. The main federal bribery statute is 18 U.S.C. 201 which
prohibits bribing federal officials, employees, jurors and witnesses. Although it makes no mention
of bribery, the honest services component of the mail and wire fraud statutes, 18 U.S.C. 1341,
1343, 1346, in some circumstances may afford prosecutors of public corruption greater latitude
and more severe penalties than §201. The Hobbs Act, 18 U.S.C. 1951, condemns public officials
who use their position for extortion. A few other statutes, noted in the margin, outlaw bribery to
obstruct specific activities.294
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.295 Bribery is a quid pro quo offense. In simple
terms, bribery under “§201(b)(1) as to the giver, and §201(b)(2) as to the recipient ... require[] a
showing that something of value was corruptly given, offered, or promised to a public official (as
to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or
accepted by a public official (as to the recipient) with intent ... to influence any official act (giver)
or in return for being influenced in the performance of any official act (recipient).”296
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
294 E.g., 18 U.S.C. 152 (bribery in bankruptcy), 224 (bribery in sporting contests), 226 (bribery affecting port security),
666 (bribery relating to federally-funded programs); 16 U.S.C. 6906 (bribery relating to the Western and Central
Pacific Fisheries Convention); 21 U.S.C. 331(y)(3), 333 (Federal Food, Drug & Cosmetic Act bribery); 42 U.S.C.
1320a-7b(b)(1)(bribery relating to social security health care).
295 The difference between bribes and gratuities under section 201 is that “for bribery there must be a quid pro quo—a
specific intent to give or receive something of value in exchange” for testimony or a vote in the jury room. “An illegal
gratuity, on the other hand, may constitute merely a reward for some” past or future testimony or jury service, United
States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999). Section 201 outlaws both but punishes bribery more
severely. For addition discussion of Section 1512 see, Twenty-Fifth Survey of White Collar Crime: Public Corruption,
47 AMERICAN CRIMINAL LAW REVIEW 915 (2010).
296 United States v. Sun-Diamond Growers, 526 U.S. at 404. See also United States v. Peleti, 576 F.3d 377, 383 (7th Cir.
2009); United States v. Valle, 538 F.3d 341, 345-47 (5th Cir. 2008).
The Court’s opinion in Sun-Diamond refers to public officials rather than jurors. Section 201defines public officials to
include jurors, 18 U.S.C. 201(a)(1). Subsections 201(b)(1),(2) provide that “Whoever—(1) directly or indirectly,
corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a
public official, or offers or promises any public official or any person who has been selected to be a public official to
give anything of value to any other person or entity, with intent—(A) to influence any official act; or (B) to influence
such public official or person who has been selected to be a public official to commit or aid in committing, or collude
in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) to induce
such public official or such person who has been selected to be a public official to do or omit to do any act in violation
of the lawful duty of such official or person; (2) being a public official or person selected to be a public official,
directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value
personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the
official duty of such official or person ... shall be fined under this title or not more than three times the monetary
equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may
be disqualified from holding any office of honor, trust, or profit under the United States.”
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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.297
The subsections condemn invitations and solicitations to corruption, but the entreaties need not be
successful298 nor does it matter that corruption was unnecessary.299 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.300 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.301 This includes anyone
who “occupies a position of public trust with official federal responsibilities.”302 Although there is
a statutory definition of “official act,”303 it has been a matter of some dispute, perhaps because of
its sweeping language.304 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
297 That is, “Whoever ... (3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person,
or offers or promises such person to give anything of value to any other person or entity, with intent to influence the
testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other
proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission,
or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence
such person to absent himself therefrom; [or] (4) directly or indirectly, corruptly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced
in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for
absenting himself therefrom; shall be fined under this title or not more than three times the monetary equivalent of the
thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified
from holding any office of honor, trust, or profit under the United States,” 18 U.S.C. 203(b)(3), (4).
298 United States v. Muhammad, 120 F.3d 688, 693 (7th Cir. 1997), citing United States v. Gallo, 863 F.2d 185, 189 (2d
Cir. 1988); United States v. Ozcelik, 527 F.3d 88, 95 (3d Cir. 2008).
299 United States v. Orenuga, 430 F.3d 1158, 1165-166 (D.C. Cir. 2005)(finding no fault with a jury instruction which
stated, “It is not a defense to the crime of bribery that had there been no bribe, the public official might have lawfully
and properly performed the same act”); United States v. Quinn, 359 F.3d 666, 675 (4th Cir. 2004)(“it does not matter
whether the government official would have to change his or her conduct to satisfy the payor’s expectations”); United
States v. Alfisi, 308 F.3d 144, 150-51(2d Cir. 2002)(rejecting the defendant’s contention that the money given the
public official was to ensure an honest and accurate inspection).
300 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).
301 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”).
302 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).
303 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”).
304 The judges of the District of Columbia Circuit recently had great difficulty agreeing on whether a police officer had
been rewarded for an “official act,” in violation of section 201’s illegal gratuity prohibition, when he checked police
department databases for motor vehicle and outstanding arrest warrant information unrelated in any police
investigation. Six members of the court held that the term “official act” does not include everything a public official is
authorized to do and reversed the officer’s conviction, Valdes v. United States, 475 F.3d 1319, 1323-326 (D.C. Cir.
2007). Five members dissented, id. at 1333. See also United States v. Dixon, 525 F.3d 1033, 1041 (11th Cir. 2008)
citing the Valdes dissent and precedent under an earlier version of §201.
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general course of conduct.305 The application difficulties seem to have been exemplified by one
appellate panel which held that governmental plea bargain practices fell within the reach of
§201’s prohibitions.306 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.307
The penalty structure for illegal gratuities under §201 is typical. Illegal gratuities, that is, offering
or soliciting a gift as a reward for an official act, is punishable by imprisonment for not more than
two years and/or a fine of not more than $250,000.308 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.309
Section 201 offenses are RICO and money laundering predicate offenses.310 Federal law
governing principals, accessories after the fact, misprision, conspiracy and extraterritorial
jurisdiction apply with equal force to bribery and illegal gratuities under §201.311
305 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”).
306 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).
307 18 U.S.C. 201(d)(“Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c)[relating to
bribery and receipt of illegal gratuities involving witnesses] shall not be construed to prohibit the payment or receipt of
witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a
witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at
any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the
preparation of such opinion, and in appearing and testifying”).
308 18 U.S.C. 201(c).
309 18 U.S.C. 201(b).
310 18 U.S.C. 1961(1), 1956(c)(7)(A).
311 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).
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Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343, 1346)
The mail fraud and wire fraud statutes have been written and constructed with such sweep that
they cover among other things, obstruction of government activities by corruption. They reach
any scheme to obstruct the lawful functioning in the judicial, legislative or executive branch of
government that involves (1) the deprivation of money, property or honest services, and (2) the
use of the mail or wire communications as an integral part of scheme.312
The elements of the two offenses are similar. Mail fraud is the federal crime of scheming to
defraud when use of the mail furthers the scheme, 18 U.S.C. 1341.313 Wire fraud is the federal
crime of scheming to defraud when use wire communications furthers the scheme, 18 U.S.C.
1343.314 Section 1346 defines “scheme to defraud” to include a scheme to deprive another of
honest services. The courts have construed their common elements in the same manner.315 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.”316 The deception that
312 For addition discussion of 18 U.S.C. 1341, 1343, and 1346 see, Twenty-Fifth Survey of White Collar Crime: Mail
and Wire Fraud, 47 AMERICAN CRIMINAL LAW REVIEW 797 (2010).
313 United States v. Bryant, 606 F.3d 912, 917 (8th Cir. 2010)(“To establish mail fraud, the government must prove: ‘(1)
a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable
foreseeability that the mail would be used, and (4) [that] the mail was used in furtherance of some essential step in the
scheme’”); United States v. McMillan, 600 F.3d 434, 447 (5th Cir. 2010); United States v. McGeehan, 584 F.3d 560,
565 (3d Cir. 2009).
18 U.S.C. 1341(“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan,
exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin,
obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or
spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or
authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or
deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial
interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail
or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to
whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or
both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both”).
314 United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010)(“The first element of wire fraud, then, is that the
defendant devised or willfully participated in a scheme to defraud. The second is that he used or caused to be used an
interstate wire communication ‘in furtherance of the scheme’; and the third that he intended ‘to deprive a victim of
money or property’”); United States v. Green, 592 F.3d 1057, 1064 (9th Cir. 2010); United States v. Mehta, 594 F.3d
277, 280 (4th Cir. 2010).
18 U.S.C. 1343 (“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be
transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings,
signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or
imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not
more than $1,000,000 or imprisoned not more than 30 years, or both”).
315 Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005)(“we have construed identical language in the wire and
mail fraud statutes in pari materia”), citing Neder v. United States, 527 U.S. 1, 20 (1999) and Carpenter v. United
States, 484 U.S. 19, 25 and n.6 (1987); see also United States v. Mullins, 613 F.3d 1273, 1281 n.2 (10th Cir. 2010)
(“[I]nterpretations of the mail fraud statute are, of course, authoritative on questions of wire fraud”); United States v.
McMillan, 600 F.3d 434, 447 n.24 (5th Cir. 2010).
316 McNally v. United States, 483 U.S. 350, 358 (1987); see also United States v. Sloan, 492 F.3d 884, 890 (7th Cir.
2007)(“a scheme to defraud exists when the conduct at issue has demonstrated a departure from the fundamental
(continued...)
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is part of the scheme, however, must be material;317 that is, it must have a natural tendency to
induce reliance in the victim to his detriment or the offender’s benefit.318 Both crimes require a
specific intent to defraud,319 and they are punishable regardless of whether the scheme
succeeds.320 As for the jurisdictional element, the “statute doesn’t require that a defendant be able
to anticipate every technical detail of a wire [or postal] transmission, before she may be held
liable for causing it. It’s enough if she ‘sets forces in motion which foreseeably would involve’
use of the wires.”321
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.322
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.323 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.324
(...continued)
honesty, moral uprightness and candid dealings in the general life of the community”); United States v. Treadwell, 593
F.3d 990, 996 (9th Cir. 2010); United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010).
317 Neder v. United States, 527 U.S. 1, 20-26 (1999).
318 Neder v. United States, 527 U.S. at 22 n .5 (“The Restatement instructs that a matter is material if ‘(a) a reasonable
man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in
question; or (b) the maker of the representation knows or has reason to know that its recipient regards or is likely to
regard the matter as important in determining his choice of action, although a reasonable man would not so regard it.’
Restatement (Second) of Torts §538 (1977)”)1, 20-6 (1999); United States v. Bryant, 606 F.3d 912, 917 (8th Cir. 2010);
United States v. Maxwell, 579 F.3d 1282, 1922 (11th Cir. 2009); United States v. Philip Morris USA, Inc., 566 F.3d
1095, 1122 (D.C. Cir. 2009).
319 United States v. Phipps, 595 F.3d 243, 245-46 (5th Cir. 2010)(“Mail and wire fraud are both specific intent crimes
that require the Government to prove that a defendant knew the scheme involved false representations”); United States
v. Anderson, 580 F.3d 639, 646-47 (7th Cir. 2009); United States v Philip Morris USA, Inc., 566 F.3d 1095, 1118 (D.C.
Cir. 2009).
320 United States v. McGowan, 590 F.3d 446, 457 (7th Cir. 2009); United States v. Gale, 468 F.3d 929, 937 (6th Cir.
2006); United States v. Schuler, 458 F.3d 1148, 1153 (10th Cir. 2006); United States v. Reifler, 446 F.3d 65, 96 (2d Cir.
2006).
321 United States v. Mullins, 613 F.3d 1273, 1281 (10th Cir. 2010); United States v. Phipps, 595 F.3d 243, 246 (5th Cir.
2010)(emphasis in the original)(“[T]here is no statutory requirement that a defendant generate a wire transmission or
mailing. Phipps needed only to cause the use of wire communication facilities”); United States v. Martinez, 588 F.3d
301, 316 (6th Cir. 2009), quoting Pereira v. United States, 347 U.S. 1, 8-9 (1954)(“One ‘causes’ the mails to be used
where he or she ‘does an act with knowledge that the use of the mails will follow in the ordinary course of business, or
where such use can reasonably be foreseen, even though not actually intended’”).
322 United States v. McNally, 483 U.S. 350, 361, 355 n.4 (1987).
323 Carpenter v. United States, 484 U.S. 19, 26-27 (1987).
324 Pasquantino v. United States, 544 U.S. 349, 357 (2005).
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In the wake of McNally, Congress expanded the scope of the mail and wire fraud statutes with the
passage of 18 U.S.C. 1346, which defines the “scheme to defraud” element in the fraud statutes to
include a scheme “to deprive another of the intangible right of honest services.” Section 1346
extends mail and wire fraud to prohibit the deprivation of the intangible right to honest services of
both public and private officers and employees.
Until construed more narrowly by the Supreme Court in Skilling, some of the lower courts
understood it to proscribe bribery, kickbacks and as well as various forms of self-dealing
committed to the detriment of those to whom the offender owed a fiduciary duty of some kind.325
In the public sector, it was thought to condemn dishonesty in public officers and employees,
although the exact scope of that proscription remained largely undefined. Some lower courts said
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.”326 The bribery examples caused little
pause; more perplexing were the issues of how broadly the conflict-of-interest provision might
reach and what atypical situations might come within the honest services fraud prohibition. The
uncertainty led the Supreme Court to conclude that Congress intended the honest services
provision to apply to bribery and kickbacks,327 but that “[i]nterpreted to encompass only bribery
and kickbacks, [it] was not unconstutionally vague.”328
Prosecutors may favor a mail or wire fraud charge over or in addition to a bribery charge if for no
other reason than that under both fraud sections offenders face imprisonment for not more than 20
years rather than the 15-year maximum found in §201.329
Mail fraud and wire fraud are both RICO and money laundering predicate offenses.330 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.
325 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).
326 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”).
327 Skilling v. United States, 130 S.Ct. 2896, 2931 n. 43 (2010) (“Apprised that a broader reading of §1346 could render
the statute impermissibly vague, Congress, we believe, would have drawn the honest-services line, as we do now, at
bribery and kickback schemes”)
328 Id. at 2933 (emphasis added).
329 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.
330 18 U.S.C. 1961(1), 1956(c)(7)(A).
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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.331 Extortion under the act comes in two forms: extortion induced by fear and extortion
under color of official right.332 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.333 Liability may be incurred by public officers and employees,
those in the process of becoming public officers or employees, their coconspirators, or those who
aid and abet public officers or employees in extortion under color or official right.334 The payment
need not have been solicited,335 nor need the official act for which it is exchanged have been
committed.336 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.337
Hobbs Act violations are punishable by imprisonment for not more than 20 years and a fine of not
more than $250,000.338 Hobbs Act offenses are RICO and money laundering predicates.339 The
act has a separate conspiracy component,340 but recourse to prosecution of conspiracy under 18
331 18 U.S.C. 1951 (“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens
physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this
section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section ...
(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of official right. (3) The term ‘commerce’ means commerce
within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in
a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points
within the same State through any place outside such State; and all other commerce over which the United States has
jurisdiction.... ”).
332 18 U.S.C. 1951(b)(2).
333 Evans v. United States, 504 U.S. 255, 268 (1992); United States v. Kincaid-Chauncey, 556 F.3d 923, 936 (9th Cir.
2009); United States v. Vigil, 523 F.3d 1258, 1266 (10th Cir. 2008); United States v. D’Amico, 496 F.3d 95, 101 (1st Cir.
2007).
334 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).
335 United States v. Abbas, 560 F.3d 660, 663 (7th Cir. 2009); United States v. Abbey, 560 F.3d 513, 517 (6th Cir. 2009);
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”).
336 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. Abbey, 560 F.3d 513, 517 (6th Cir. 2009); United States v. Foster, 443 F.3d
978, 984 (8th Cir. 2006); United States v. Urban, 404 F.3d 754, 768 (3d Cir. 2005).
337 United States v. Kincaid-Chauncey, 556 F.3d 923, 936 (9th Cir. 2009)(“[T]he government was required to prove ...
at least a de minimis effect on commerce”); United States v. Carter, 530 F.3d 565, 572 (7th Cir. 2008)(“While the
Hobbs Act requires that the extortion must have an effect on interstate commerce, this Court has repeatedly held that
only a de minimis effect must be shown”); United States v. Vigil, 523 F.3d 1258, 1266 (10th Cir. 2008).
338 18 U.S.C. 1951(a).
339 18 U.S.C. 1961(1), 1956(c)(7)(A).
340 18 U.S.C. 1951(a); e.g., United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010); United States v. Merlino, 592
F.3d 22, 25 (1st Cir. 2010); United States v. Mausali, 590 F3d. 1077, 1079 (9th Cir. 2009).
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U.S.C. 371 is an alternative.341 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.342
Obstruction of Investigations by Bribery (18 U.S.C. 1510(a))
Before Congress rewrote federal obstruction of justice law in 1982, §1510 covered the
obstruction of federal 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 §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.343 Moreover, §1510 defines the federal investigators within its protection344 more narrowly
than does the definition that applies to §1512 coverage.345 In addition, §1512 outlaws impeding
communications relating to a violation of bail, parole, probation or supervised release conditions,
which §1510 does not. Like §1512 offenses, however, §1510 offenses are RICO and money
laundering predicate offenses.346
Obstruction of Justice by Destruction of Evidence
Other than subsection 1512(c), three federal statutes 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.
341 E.g., 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 ... ”); United States v. Bornscheuer, 563 F.3d 1228, 1233-234 (11th Cir. 2009); United States v. Vazquez-
Botet, 532 F.3d 37, 44 (1st Cir. 2008).
342 18 U.S.C. 4, 2, 3.
343 18 U.S.C. 1512(b)(3), (a)(1)(C), (a)(2)(C).
344 “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).
345 “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).
346 18 U.S.C. 1961(1), 1956(c)(7)(A).
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None of the three are RICO or money laundering predicate offenses.347 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.348
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, §1519 outlaws obstruction of federal investigations or bankruptcy proceedings by such
means. Section 1519’s language might suggest that it only reaches 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,
D. conceals,
E. covers up,
F. falsifies, or
G. makes a false entry in
IV. any
A. record,
B. document, or
C. tangible item
347 18 U.S.C. 1961(1), 1956(c)(7).
348 18 U.S.C. 371, 2, 3, 4.
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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.349
The legislative history of §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.350 Section 1519 was passed with an eye to the
prosecution of the Arthur Andersen accounting firm,351 yet without the benefit the Supreme
349 18 U.S.C. 1519.
350 “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 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
oftlineto 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).
351 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”).
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Court’s later decision in the case.352 Characterized as the “anti-shredding” provision of the
Sarbanes-Oxley Act,353 the section clearly reaches the destruction of evidence, but it is used with
at least equal frequency to prosecution the falsification of evidence.354
It seems clear that the conduct which §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”).355
The question of whether §1519 applies to congressional and grand jury investigations might also
have been the subject of 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.356 Congress then amended §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 §1519. Beyond the bankruptcy matters to the which the section explicitly refers,357
however, the case law suggests that, as long as a matter is within the investigative purview of a
federal executive branch agency, the section extends to the obstruction of other judicial branch
investigations such as those of the grand jury.358 The same logic might be used to bring
destruction of evidence sought by Congress within the section’s purview.
352 Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).
353 United States v. Lessner, 498 F.3d 185, 196 (3d Cir. 2007); Anticipatory Obstruction of Justice: Pre-Emptive
Document Destruction under the Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. §1519, 89 CORNELL LAW REVIEW
1519 (2004).
354 United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008)(“The statute rather plainly criminalizes the conduct of an
individual who (1) knowingly (2) makes a false entry in a record or document (3) with the intent to impede or influence
a federal investigation”); e.g., United States v. Fontenot, 611 F.3d 734, 735-36 (11th Cir. 2010); United States v.
Holden, 557 F.3d 698, 700 (6th Cir. 2009).
355 See e.g., United States v. Lanham, 617 F.3d 873, (6th Cir. 2010)(“Lanham also argues that there had to be an
ongoing or imminent federal investigation at the time reports were written to meet the requirements of the statute. The
language in 18 U.S.C. §1519 clearly states that the falsification could be done ‘in relation to or contemplation of any’
investigation or matter within United States jurisdiction. The conspiracy to harm J.S. was within the jurisdiction of the
United States, and the falsification was presumably done in contemplation of an investigation that might occur”);
United States v. Jho, 465 F.Supp. 2d 618, 636 (E.D. Tex. 2006), rev’d on other grounds, 534 F.3d 398 (5th Cir.
2008)(“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”).
356 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.
357 E.g., United States v. Holstein, 618 F.3d 610 (7th Cir. 2010).
358 United States v. Hoffman-Vaile, 568 F.3d 1335, 1343 (11th Cir. 2009)(“Because the Department of Health and
Human Services, which is a ‘department or agency of the United States,’ conducted the investigation of Dr. Hoffman-
Vaile and the grand jury subpoenaed the missing records ‘in relation to or in contemplation of this investigation, her
failure to produce the records with the photographs intact is obstructive conduct under section 1519”); cf., 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
(continued...)
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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.”359 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.360 Section 2232(a) is closely related
to 18 U.S.C. 1519, and individuals who destroy property to prevent its seizure by federal law
enforcement officials may also find themselves charged or convicted with obstructing a federal
investigation under §1519 based on the same misconduct.361 Section 2232(a) violations are
punishable by imprisonment for not more than five years and/or a fine of not more than
$250,000.362
Destruction of Corporate Audit Records (18 U.S.C. 1520)
The Sarbanes-Oxley Act augmented §1519 with a very explicit prohibition on the destruction of
corporate audit records in §1520.363 Section 1520 requires those who audit the issuers of
securities to keep their records and work papers for 5 years. The penalty for violation of §1520 is
imprisonment for not more than 10 years and/or a fine of not more than $250,000.364
(...continued)
applicable and we do not limit our analysis to Section 1519],” id. (pertinent portions of footnote 3 of the court’s opinion
in brackets).
359 United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005).
360 Id. at 661; cf., United States v. Lessner, 498 F.3d 185, 198 (3d Cir. 2007).
361 E.g., United States v. Rappe, 614 F.3d 332, 332 (7th Cir. 2010); United States v. Vosburgh, 602 F.3d 512, 521 (3d
Cir. 2010).
362 18 U.S.C. 2232(a), 3571.
363 “(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 five
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 (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).
364 18 U.S.C. 1520(b), 3571.
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Obstruction of Justice by Deception
In addition to the obstruction of justice provisions of 18 U.S.C. 1503 and 1512, four other general
statutes 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.365 The
laws relating to aiding and abetting, accessories after the fact, misprision, and conspiracy,366
however, apply to all four.367 Sections 1621 and 1623 state that their prohibitions apply regardless
of whether the perjurious conduct occurs overseas or within this country.368 Section 1001 has no
such explicit declaration, but has been held to have extraterritorial application nonetheless.369
Perjury in a Judicial Context (18 U.S.C. 1623)
Congress enacted Section 1623 to avoid in relation to judicial proceedings some of the common
law technicalities embodied in the more comprehensive perjury provisions found in subsection
1621 and thus “to facilitate perjury prosecutions and thereby enhance the reliability of testimony
before federal courts and grand juries.”370 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.371 It recognizes a limited recantation defense.372 It dispenses with the so-called
two-witness rule.373 And, it employs a “knowing” mens rea standard rather than the more
demanding “willfully” standard used in subsection 1621.374
When Congress enacted the judicial perjury provisions of §1623, however, it did not repeal or
amend the general provisions of §1621, either explicitly or by implication. Where the two
proscriptions overlap, the government is free to choose the provision under which it will
prosecute.375 Since §1623 frees prosecutors from many of the common law requirements of
365 18 U.S.C. 1961(1), 1956(c)(7).
366 18 U.S.C. 2, 3, 4, 371.
367 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).
368 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”).
369 United States v. Walczak, 783 F.2d 852, 854-55 (9th Cir. 1986).
370 Dunn v. United States, 442 U.S. 100, 107 (1979), citing S.Rept. 91-617, at 58-9 (1969)(internal citations omitted).
371 18 U.S.C. 1623(c).
372 18 U.S.C. 1623(d).
373 18 U.S.C. 1623(e).
374 18 U.S.C. 1623(a).
375 United States v. Sherman, 150 F.3d 306, 312-13 (3d Cir. 1998); United States v. Ruggiero, 472 F.2d 599, 606 (2d
(continued...)
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§1621, it is perhaps not surprising that they ordinarily elect to prosecute under §1623 when
possible. On the other hand, §1621 permits prosecution of perjury committed before Congress or
administrative bodies when prosecution under §1623 is not possible.
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 Code376
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.377
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
(...continued)
Cir. 1973).
376 “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)’.”
377 18 U.S.C. 1623(a).
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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.378
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,379 but the phrase “proceedings
ancillary to” court or grand jury proceedings does cover proceedings to take depositions in
connection with civil litigation,380 as well as a variety of pretrial proceedings in criminal cases,381
including habeas proceedings,382 bail hearings,383 venue hearings,384 or suppression hearings.385
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,386 applies with equal force to
perjury under Section 1623.387 Similarly, perjury cannot be the product of confusion, mistake, or
faulty memory, but must be a statement that the defendant knows is false,388 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.389 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.”390 Yet ambiguity will be of no avail if the defendant understands the question and
answers falsely nevertheless.391
378 United States v. Gorman, 613 F.3d 711, 715-16 (7th Cir. 2010)(“To support a conviction for perjury beyond a
reasonable doubt, the government had the burden of proving that (1) the defendant, while under oath, testified falsely
before the grand jury; (2) his testimony related to some material matter; and (3) he knew that testimony was false”);
United States v. Hasan, 609 F.3d 1121, 1134 (10th Cir. 2010)(“To establish guilt under the statute, the government must
prove beyond a reasonable doubt that: (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. 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); United States v. Hirsch, 360 F.3d 860, 864-65 (8th
Cir. 2004).
379 Dunn v. United States, 442 U.S. 100, 111-12 (1979).
380 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).
381 United States v. Farmer, 137 F.3d 1265 (11th Cir. 1998).
382 United States v. Johnson, 325 F.3d 205, 209 (4th Cir. 2003).
383 United States v. Greene, 591 F.2d 471 (8th Cir. 1979).
384 United States v. Durham, 139 F.3d 1325 (10th Cir. 1998).
385 United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998).
386 Bronston v. United States, 409 U.S. 352, 358-59 (1973).
387 United States v. Gorman, 613 F.3d 711, 716 (7th Cir. 2010); United States v. Thomas, 612 F.3d 1107, 1114-115 (9th
Cir. 2010); United States v. Richardson, 421 F.3d 17, 32-3 (1st Cir. 2005); United States v. Shotts, 145 F.3d 1289, 1297
(11th Cir. 1998); United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1996).
388 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).
389 United States v. Fawley, 137 F.3d 458, 466-67 (7th Cir. 1998).
390 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”).
391 United States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003)(“A question leading to a statement supporting a perjury
(continued...)
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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.”392 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.”393
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.394 In
any event, a statement is no less material because it did not or could not divert the
decisionmaker.395
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.396 Under such circumstances it is said the tribunal has no
(...continued)
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 Cir. 2007);
United States v. Gorman, 613 F.3d 711, 716 (7th Cir. 2010).
392 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); see also United States v. Benkahla, 530 F.3d 300, 310 (4th Cir.
2008); 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).
393 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).
394 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. . at the time
... it is not thereby rendered immaterial” (citing cases in which 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”)).
395 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).
396 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).
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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.397
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.398
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 perjury.399 Moreover, the statements must be so inherently
contradictory that one of them of necessity must be false.400
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.”401 Subsection 1623(e)
permits a perjury conviction without compliance with this traditional two witness rule.402 Since
397 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).
398 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”).
399 United States v. Jaramillo, 69 F.3d 388, 390 (9th Cir. 1995).
400 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)).
401 Weiler v. United States, 323 U.S. 606, 607 (1945).
402 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); United States v. Hasan, 609 F.3d 1121,
1139 (10th Cir. 2010).
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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.403
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.”404 Although phrased in different terms, the courts seem to
agree that repudiation of the false testimony must be specific and thorough.405 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
condition exists. Most courts have concluded that the presence of either condition dooms the
defense.406
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.407 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.408 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.409
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.410 Since Section 1623 frees prosecutors from many of the
common law requirements of Section 1621, it is perhaps not surprising that they ordinarily elect
403 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).
404 18 U.S.C. 1623(d); cf., United States v. DeLeon, 603 F.3d 397, 404-405 (7th Cir. 2010).
405 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).
406 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).
407 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).
408 United States v. Smith, 35 F.3d 344, 345 (8th Cir. 1994).
409 United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993).
410 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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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
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,
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.411
411 18 U.S.C. 1621.
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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 intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.”412
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 1621.413
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.”414
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.”415 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.416
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.”417
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 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.”418 Other courts have referred to it as acting with an “intent to deceive”419 or as acting
“intentionally.”420
412 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”).
413 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).
414 Hammer v. United States, 271 U.S. 620, 626 (1926).
415 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).
416 Weiler v. United States, 323 U.S. 606, 610 (1945); United States v. Stewart, 433 F.3d 273, 315 (2d Cir. 2006)(“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”).
417 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); see also United States v. Wallace, 597 F.3d 794, 801 (6th Cir. 2010)(“A false declaration satisfies
the materiality requirement if a truthful statement might have assisted or influenced the jury in its investigation”).
418 United States v. Norris, 300 U.S. 564, 574 (1937)(emphasis added).
419 United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954).
420 United States v. Friedman, 854 F.2d 535, 560 (2d Cir. 1988); United States v. Mounts, 35 F.3d 1208, 1219 (7th Cir.
(continued...)
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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.421
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 1622,422 but proof of the commission of an act of perjury is a necessary element of
subornation.423 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.424 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 1512425 which unlike Section 1622 do not insist upon suborner
success as a prerequisite to prosecution.426
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.427 More
specifically it states:
(...continued)
1994).
421 United States v. Norris, 300 U.S. 564, 574 (1934); United States v. McAfee, 8 F.3d 1010, 1017 (5th Cir. 1993).
422 United States v. Endo, 635 F.2d 321, 322 (4th Cir. 1980).
423 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).
424 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).
425 United States v. Miller, 161 F.3d 977, 982-84 (6th Cir. 1998).
426 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 ... ”).
427 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
(continued...)
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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, if the offense involves
international or domestic terrorism (as defined in section 2331), imprisoned not more than 8
years, or both. 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], then the term of imprisonment imposed under
this section shall be not more than 8 years.428
The courts’ description of the elements will sometimes be couched in terms of the form of
deception at hand—false statement,429 concealment,430 or false documentation.431 On other
occasions the courts will simply treat concealment or false documentation as a form of false
statement.432
(...continued)
(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).
428 18 U.S.C. 1001(a). For additional discussion of §1001 see, Twenty-Fifth Survey of White Collar Crime: False
Statements and False Claims, 47 AMERICAN CRIMINAL LAW REVIEW 527 (2010).
429 United States v. Geisen, 612 F.3d 471, 489 (6th Cir. 2010)(“In order to convict a defendant for making false
statements to a federal agency in violation of 18 U.S.C. §1001, the government must prove: (1) the defendant made a
statement; (2) the statement is false or fraudulent; (3) the statement is material; (4) the defendant made the statement
knowingly and willfully; and (5) the statement pertained to an activity within the jurisdiction of a federal agency”);
United States v. Dinga, 609 F.3d 904, 907 (7th Cir. 2010).
430 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”).
431 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).
432 United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010)(“To sustain a conviction for violation of 18 U.S.C.
section 1001, the government must prove (1) that a statement was made; (2) that it was false; (3) that it was material;
(continued...)
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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.433
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.”434 Several courts have
held that the phrase contemplates coverage of false statements made to state, local, or private
entities but relating to matters that involve federal funds or regulations.435 Subsection 1001(b)
(...continued)
(4) that it was made with specific intent; and (5) that it was within the jurisdiction of an agency of the United States....
Falsity under section 1001 can be established by a false representation or by concealment of a material fact”); United
States v. White, 492 F.3d 380, 396 (6th Cir. 2007)(“Sufficient evidence also supports Defendant White’s conviction for
use of a false document. Title 18 U.S.C. §1001(a)(3) prohibits ‘knowingly and willfully mak[ing] or us[ing] any false
writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.’ 18
U.S.C. §1003(a)(3). Here, the government must prove (1) the defendant made a statement; (2) the statement is false or
fraudulent; (3) the statement is material; (4) the defendant made the statement knowingly and willfully; and (5) the
statement pertained to an activity within the jurisdiction of a federal agency”).
433 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).
434 United States v. Rodgers, 466 U.S. 475, 479 (1984); United States v. Jackson, 608 F.3d 193, 197 (4th Cir. 2010);
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).
435 United States v. Starnes, 583 F.3d 196, 208 (3d Cir. 2009)(“Indeed, it is enough that the statement or representation
pertain to a matter in which the executive branch has the power to exercise authority.... HUD, an agency within the
executive branch, provided the funding for the Donoe project to VIHA and had the power to exercise authority over the
project, had it chosen to do so”); United States v. Taylor, 582 F.3d 558, 563(5th Cir. 2009)(“The term ‘jurisdiction’
merely incorporates Congress’[s] intent that the statute apply whenever false statements would result in the perversion
of the authorized functions of a federal department or agency”); 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”).
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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,436 or by a defendant for a
probation officer’s presentence report;437 but not statements made by one on supervised release to
a parole officer.438
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 entity439 nor that he intended to defraud a federal entity.440 It does, however, require the
government to show the defendant knew or elected not to know that the statement, omission, or
documentation was false and that the defendant presented it with the intent to deceive.441 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.”442
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 to which it is addressed.”443 There is no need
to show that the decision maker was in fact diverted or influenced.444
Conviction for false statements or false documentation under Section 1001 also requires that the
statements or documentation be false, that they not be true.445 And the same can be said of the
436 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”).
437 United States v. Horvath, 492 F.3d 1075, 1078-1081 (9th Cir. 2007).
438 United States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001).
439 United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006).
440 United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006); United States v. Starnes, 583 F.3d 196, 212 n. 8 (3d Cir.
2009).
441 United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010)(“For purposes of the statute, the word ‘false’
requires an intent to deceive or mislead”); United States v. Starnes, 583 F.3d 196, 210 (3d Cir. 2009)(“In general,
‘knowingly’ requires the government to prove that a criminal defendant had ‘knowledge of the facts that constitute the
offense ... willfully ... usually requires the government to prove that the defendant acted not merely voluntarily, but
with a bad purpose, that is, with knowledge that his conduct was, in some general sense, unlawful”).
442 United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006); 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).
443 United States v. Garcia-Ochoa, 607 F.3d 371, 375 (4th Cir. 2010); United States v. Boffil-Rivera, 607 F.3d 736, 741-
42 (11th Cir. 2010); United States v. Jimeniez, 593 F.3d 391, 399-400 (5th Cir. 2010); United States v. Turner, 551 F.3d
657, 663 (7th Cir. 2008); 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).
444 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).
445 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
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response to a question that is so fundamentally ambiguous that the defendant’s answer cannot be
said to be knowingly false.446 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.”447
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.448
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 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 §1510, which
prohibits bank officials from notifying suspects that they are under investigation,449 and which
imposes a similar restriction on insurance company officers and employees.450
(...continued)
States v. Kosth, 257 F.3d 712, 719 (7th Cir. 2001).
446 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).
447 United States v. Dooley, 578 F.3d 582, 592 (7th Cir. 2009); 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).
448 United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008)(“As Safavian argues and as the government agrees,
there must be a legal duty in order for there to be a concealment offense in violation of §1001(a)(1)”); 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 and 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).
449 “(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 five 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).
450 “(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
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Subsection 2511(1)(e) proscribes tipping off the targets of federal or state law enforcement
wiretaps.451 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.452 All
three offenses are punishable by imprisonment for not more than five years.453
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;454 18 U.S.C. 1516 that bans obstruction
(...continued)
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 five 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).
451 “(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).
452 “(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 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 five 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).
453 Id.
454 “(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
(continued...)
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of a federal audit of an activity involving more than $100,000 in federal funds;455 18 U.S.C. 1517
that prohibits obstruction of the federal audit of a financial institution;456 18 U.S.C. 1518 that
condemns obstruction of federal criminal investigation of possible health care offenses;457 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;458 and 18 U.S.C. 1521
that proscribes retaliating against federal judges, officers, or employees by subjecting their
property to false liens.459 The penalty for violating each of the sections other than §118 or §1521
is imprisonment for not more than five years.460 Section 1521 offenses are punishable by
imprisonment for not more than 10 years, and §118 offenses are punishable by imprisonment for
not more than one year.461
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.462 Violations are punishable by
(...continued)
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).
455 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, 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”).
456 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”).
457 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”).
458 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”).
459 18 U.S.C. 1521 (“Whoever files, attempts to file, or conspires to file, in any public record or in any private record
which is generally available to the public, any false lien or encumbrance against the real or personal property of an
individual described in section 1114, on account of the performance of official duties by that individual, knowing or
having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent
statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both”).
460 18 U.S.C. 1516, 1517, 1518. Each offense also carries with liability for a criminal fine of not more than $250,000,
id. and 18 U.S.C. 3571.
461 18 U.S.C. 118, 1521. The maximum fine for an offense under §118 is $100,000; the maximum for an offense under
§1521 is $250,000, id. and 18 U.S.C. 3571.
462 18 U.S.C. 1504 (“Whoever attempts to influence the action or decision of any grand or petit juror of any court of the
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imprisonment for not more than 6 months and/or a fine of not more than $5,000. The section
appears to have been prosecuted only infrequently, perhaps in part because of the availability of
prosecution under other statutes such as contempt or obstruction of justice.463
Although the statute suggests that the section does not 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.464
Obstruction of Justice as a Sentencing Factor
(U.S.S.G. §3C1.1)
Regardless of the offense for which an individual is convicted, his sentence may be enhanced as a
consequence of any obstruction of justice for which he is responsible, if committed during the
course of the investigation, prosecution, or sentencing for the offense of his conviction.465 The
enhancement may result in an increase in his term of imprisonment by as much as 4 years. The
enhancement is the product of the influence of §3C1.1 of the United States Sentencing
Guidelines.
Federal sentencing begins with, and its greatly influenced by, the calculation of the applicable
sentencing range under the Sentencing Guidelines.466 The Guidelines assign every federal crime a
(...continued)
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”).
463 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.
464 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).
465 If the defendant is convicted of an obstruction of justice offense, the enhancement only applies “if a significant
further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if
the defendant threatened a witness during the course of the prosecution for the obstruction offense),” U.S.S.G. §3C1.1,
cmt., app. n. 7.
466 Gall v. United States, 552 U.S. 38, 49-51 (2007)(“[A] district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.... [A]fter giving both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should then consider all of the [18 U.S.C] §3553(a) factors to
determine whether they support the sentence requested by a party.. . . If he decides that an outside-Guidelines sentence
is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more
significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing....
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review
the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the §3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider
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base offense level to which they add levels for various aggravating factors. Obstruction of justice
is one of those factors. Each of the final 43 offense levels is assigned to one of six sentencing
ranges, depending on the extent of the defendant’s past crime history. For example, a final offense
level of 15 means a sentencing range of from 18 to 24 months in prison for a first time offender
(criminal history category I) and from 41 to 51 months for a defendant with a very extensive
criminal record (criminal history category VI).467 Two levels higher, at a final offense level of 17,
the range for first time offenders is 24 to 30 months; and 51 to 63 months for the defendant with a
very extensive prior record.468 The impact of a 2-level increase spans from no impact at the
lowest final offense levels to a difference of an additional 68 months at the highest levels.469
Section 3C1.1 instructs sentencing courts to add 2 offense levels in the case of an obstruction of
justice:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the
offense level by 2 levels. U.S.S.G. §3C1.1.
The accompanying commentary explains that the section “is not intended to punish a defendant
for the exercise of a constitutional right.”470 More specifically, a “defendant’s denial of guilt
(other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide
information to a probation officer, or refusal to enter a plea of guilty is not a basis for application
of this provision.”471 Early on, the Supreme Court made it clear that an individual’s sentence
might be enhanced under U.S.S.G §3C1.1, if he committed perjury during the course of his
trial.472 Moreover, the examples provided elsewhere in the section’s commentary and the cases
applying the section confirm that it reaches perjurious statements in a number of judicial contexts
and to false statements in a number of others. The examples in the section’s commentary cover
conduct:
(B) committing, suborning, or attempting to suborn perjury, including during the course of a
civil proceeding if such perjury pertains to conduct that forms the basis of the offense of
conviction;
(F) providing materially false information to a judge or magistrate;
(...continued)
the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this
review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance
from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to,
apply a presumption of reasonableness. But if the sentence is outside the Guidelines range, the court may not apply a
presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the
district court’s decision that the §3553(a) factors, on a whole, justify the extent of the variance”).
467 U.S.S.G. ch. 5 Sentencing Table.
468 Id.
469 Id.
470 U.S.S.G. §3C1.1, cmt., app. n. 2.
471 Id.
472 United States v. Dunnigan, 507 U.S. 87, 98 (1993).
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(G) providing a materially false statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of the instant offense;
(H) providing materially false information to a probation officer in respect to a presentence
or other investigation for the court; [and]
(I) other conduct prohibited by obstruction of justice provisions under Title 18, United States
Code (e.g., 18 U.S.C. §§1510, 1511).473
The courts have concluded that an enhancement under the section is appropriate, for instance,
when a defendant has (1) given preposterous, perjurious testimony during his own trial;474 (2)
given perjurious testimony at his suppression hearing; (3) given perjurious, exculpatory testimony
at the separate trial of his girl friend;475 (4) made false statements in connection with a probation
officer’s bail report;476 (5) made false statements to the court in an attempt to change his guilty
plea;477 (6) made false statements to federal investigators;478 and (7) made false statements to state
investigators relating to conduct for which the defendant was ultimately conviction.479
When perjury provides the basis for an enhancement under the section, the court must find that
the defendant willfully testified falsely with respect to a material matter.480 When based upon a
false statement not under oath, the statement must still be material, that is, it must “tend to
influence or affect the issue under determination.”481 Even then, false identification at the time of
arrest only warrants a sentencing enhancement under the section when the deception significantly
hinders the investigation or prosecution.482
The commentary accompanying the section also states that the enhancement may be warranted
when the defendant threatens a victim, witness, or juror;483 submits false documentations;484
473 U.S.S.G. §3C1.1, cmt., app. n. 4(a).
474 United States v. Dinga, 609 F.3d 904, 909 (7th Cir. 2010).
475 United States v. Quintero, 618 F.3d 746, 752-53 (7th Cir. 2010).
476 United States v. Bedolla-Zavala, 611 F.3d 392, 395 (7th Cir. 2010).
477 United States v. Alvarado, 615 F.3d 916, 922-23 (8th Cir. 2010).
478 United States v. Jones, 612 F.3d 1040, 1046-47 (8th Cir. 2010).
479 United States v. Alexander, 602 F.3d 639, 642-43 & n.4 (5th Cir. 2010)(“The First, Second, Third, Forth, Sixth,
Eighth, Ninth, Tenth and Eleventh Circuits have all held that obstruction of a state investigation based on the same
facts as the eventual federal conviction qualifies for enhancement under U.S.S.G. §3C1.1.... Only the Seventh Circuit
has held the obstruction of a state proceeding does not qualify ... ”).
480 United States v. Johnson, 612 F.3d 889, 893 (7th Cir. 2010), citing United States v. Dunnigan, 507 U.S. 87, 95
(1993); see also United States v. Gonzalez, 609 F.3d 13, 20(1st Cir. 2010); United Stats v. Mashek, 606 F.3d 922, 933
(8th Cir. 2010).
481 U.S.S.G. §3C1.1, cmt., app. n. 6; United States v. Bedolla-Zavala, 611 F.3d at 396; United States v. Miller, 607 F.3d
144, 151 (5th Cir. 2010); see also U.S.S.G. §3C1.1, cmt., app. n. 5(C)(“Examples of Conduct Ordinarily Not
Covered.— ... The following is non-exhaustive list of examples of the types of conduct to which this application note
applies ... (C) providing incomplete or misleading information, amount amounting to a material falsehood, in respect to
a presentencing investigation”); United States v. Miller, 607 F.3d 144, 150 (5th Cir. 2010)(omission of a source of
income and fact of a bankruptcy filing from presentence financial statement).
482 U.S.S.G. §3C1.1, cmt., app. n. 5(a); cf., United States v. Bedolla-Zavala, 611 F.3d at 395-96.
483 U.S.S.G. §3C1.1, cmt., app. n. 4(A), (K)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: (A) threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so; ... (K) threatening
the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of
conviction”); see United States v. Snipes, 611 F.3d 855, 871 (11th Cir. 2010)(enhancement appropriate for threats to
(continued...)
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destroys evidence;485 flees (in some cases);486 or engages in any other conduct that constitute an
obstruction of justice under criminal law provisions of title 18 of the United States Code.487
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
(...continued)
induce failure to comply with grand jury subpoena); United States v. Green, 617 F.3d 233, 239 n. 3 (3d Cir.
2010)(enhancement appropriate for threats against a potential witness).
484 U.S.S.G. §3C1.1, cmt., app. n. 4(C)(“ Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (C) producing or attempting to produce a false,
altered, or counterfeit document or record during an official investigation or judicial proceeding”).
485 U.S.S.G. §3C1.1, cmt., app. n. 4(D)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (D) destroying or concealing or directing or
procuring another person to destroy or conceal evidence that is material to an official investigation or judicial
proceeding (e.g., shredding a document or destroying ledgers upon learning that an official investigation has
commenced or is about to commence), or attempting to do so; however, if such conduct occurred contemporaneously
with arrest (e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient
to warrant an adjustment for obstruction unless it results in a material hindrance to the official investigation or
prosecution of the instant offense or the sentencing of the offender”); United States v. King, 604 F.3d 125, 141 (3d Cir.
2010)(destruction of evidence-containing computer hard drives).
486 U.S.S.G. §3C1.1, cmt., app. n. 4(E)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (E) escaping or attempting to escape from custody
before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding”); but see U.S.S.G.
§3C1.1, cmt., app. n. 5(D)(“Examples of Conduct Not Covered.... The following is a non-exhaustive list of examples of
the types of conduct to which this adjustment applies: ... (D) avoiding or fleeing from arrest”); see United States v.
Gonzalez, 608 F.3d 1001, 1006-1007(7th Cir. 2010), citing cases endeavoring to distinguish the two statements in the
commentary.
487 U.S.S.G. §3C1.1, cmt., app. n. 4(I)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (E) other conduct prohibited by obstruction of
justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§1510, 1511”); see United States v. Wahlstrom,
588 F.3d 538, (8th Cir. 2009)(enhancement appropriate for efforts to arrange the murder of the prosecutor’s wife);
United States v. Jones, 612 F.3d 1040, 1046-47 (8th Cir. 2010)(enhancement appropriate for efforts induce a witness to
testify falsely before the grand jury).
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