October 7, 1998
CRS Report for Congress
Received through the CRS Web
Obstruction of Justice Under Federal Law:
An Abbreviated Sketch
American Law Division
Although in a given case the same misconduct may be punishable under other
federal statutes — some like 18 U.S.C. 1001 equally broad and others like 18 U.S.C.
1516 more narrowly drawn, this report focuses on selected aspects of the general
obstruction of justice provisions found in 18 U.S.C. 1503, 1505, and 1512. It is
essentially a replica, without footnotes or citations, of CRS Report 98-832, Obstruction
of Justice Under Federal Law: A Review of Some of the Elements.
Section 1503 prohibits obstruction of pending federal judicial proceedings; section
1505 outlaws obstruction of pending administrative and Congressional proceedings; and
section 1512 bans witness tampering with the intent to obstruct federal judicial,
administrative, or Congressional proceedings.
Obstruction of Federal Courts (18 U.S.C. 1503)
Section 1503 condemns obstructing pending judicial proceedings under any of four
kinds of interference. Three explicitly address interfering with federal jurors or court
officials; the fourth, interference with the due administration of justice.
The courts often observe that to convict under this omnibus clause 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.
There is little dispute over the demands of 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.
Congressional Research Service ˜ The Library of Congress
Marking the outer boundaries of “corruptly endeavoring to influence, obstruct or
impede” has proven more challenging. Several circuits have held that to act “corruptly”
within the meaning of the omnibus clause requires that the defendant have acted with the
intent to influence, obstruct, or impede the proceeding in question. The combination of
this somewhat relaxed standard coupled with the fact that an offender need only
“endeavor” to obstruct gives the clause a potential sweep that the courts have sought to
confine by requiring a demonstration of clear nexus between the obstructing conduct and
the target proceedings. The nexus requirement is alternatively and more regularly cast as
a requirement that the misconduct have the natural and probable effect of interfering with
the due administration of justice. There is no requirement, however, that the defendant’s
endeavors succeed or even that they were capable of succeeding (as long as the accused
was unaware of the futility of his efforts to obstruct).
The courts are at odds over whether the due administration of justice in section 1503
may be obstructed by corrupting a witness before a federal judicial proceeding. The
Second Circuit believes that when Congress enacted the more specific witness tampering
and witness retaliation provisions of 18 U.S.C. 1512 and 1513 it intended to remove those
crimes from the omnibus clause’s inventory of proscriptions. The other circuits, to the
extent they have addressed the issue, disagree.
The specific kinds of misconduct which under the appropriate circumstances may
provide the basis for a prosecution under the omnibus clause include:
- creation of false documents to be presented in evidence
- destruction of documentary evidence
- submission of a forged letter during a probation revocation hearing
- instructing a subordinate to conceal evidence
- a civil trial juror’s solicitation of a bribe
- pressuring bar owners to backdate video machine leases to conceal gambling
- encouraging grand jury witnesses to falsify records and commit perjury
- promising to bribe a trial judge (even absent an intent to offer the bribe)
- grand juror’s disclosing matters occurring before the grand jury
- backdating a contract to be submitted to the grand jury
- instructing others to alter records in anticipation of a grand jury subpoena
- informant’s providing defense attorney with a false statement that might be used
to impeach the informant’s contrary testimony at trial.
Obstruction of Congressional and Administrative Proceedings
(18 U.S.C. 1505)
Section 1505 outlaws interfering with Justice Department civil investigative
demands issued in antitrust cases, but deals primarily with obstructing Congressional and
federal administrative proceedings.
Prosecutions under section 1505 are relatively few, and most of these arise as
obstruction of administrative proceedings. The crime of obstruction of such proceedings
has three essential elements. First, there must be a proceeding pending before a
department or agency of the United States. Second, the defendant must be aware of the
pending proceeding. Third, the defendant must have intentionally endeavored corruptly
to influence, obstruct or impede the pending proceeding.
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
constitute a “proceeding” for purposes of section 1505. In doing so, it rejected the notion
that section 1505 applies only to adjudicatory or rule-making activities, and does not
apply to wholly investigatory activity. Furthermore, 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. 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).
In the case of either administrative or Congressional proceedings, section 1505
condemns only that misconduct which is intended to obstruct the administrative
proceedings or the due and proper exercise of the power of inquiry. In order to overcome
judicially-identified uncertainty as to the intent required, Congress added a definition of
“corruptly” in 1996: “As used in section 1505, the term `corruptly’ means acting with an
improper purpose, personally or by influencing another, including making a false or
misleading statement, or withholding, concealing, altering, or destroying a document or
other information,” 18 U.S.C. 1515(b).
Examples of the type of conduct that has been found obstructive include:
- enlisting others to lie to AID Inspector General’s Office investigators
- using threats to avoid an interview with IRS officials
- making false statements to a Defense Department auditor
- lying to Customs Service officials and inspectors
- endeavoring to use family relationship to obstruct Congressional committee
- submitting false documentation in response to an IRS subpoena
- instructing a subordinate to destroy records sought under a DOE subpoena
- “blatant evasiveness and feigned forgetfulness” of a witness during testimony
before an SEC investigative hearing.
Witness Tampering (18 U.S.C. 1512)
Section 1512 forbids murdering (18 U.S.C. 1512(a)), harassing (18 U.S.C. 1512(c)),
or otherwise tampering (18 U.S.C. 1512(b)) with federal witnesses in order to prevent
them from reporting misconduct to federal authorities, appearing as witnesses in federal
proceedings, or producing evidence at federal proceedings. Although the murder and
harassment subsections are not insignificant, the heart of the section is the omnibus
subsection, subsection 1512(b). It outlaws (1) knowingly, (2) using one of the prohibited
forms of persuasion, (3) with the intent to prevent a witness’s testimony or physical
evidence from being presented at official federal proceedings or with the intent to prevent
a witness from reporting evidence of a crime to federal authorities.
Obstruction under section 1503 can only be committed during the pendency of
federal proceedings. Congress expressly disclaimed any intention to impose a similar
requirement for obstruction prosecutions under section 1512. Consequently, conviction
under section 1512 does not require the government to show that the defendant was aware
of any pending or contemplated federal proceedings or investigations. Congress likewise
eliminated any requirement that the government prove that the defendant knew of the
federal character of the proceedings or investigations he intended to obstruct. In a case
charging that the defendant acted with the intent to obstruct the reporting of a federal
crime to federal authorities, the government need not show that the accused knew the
crime was federal or knew that the authorities were federal authorities, but the
government must still prove the existence of the federal nexus in fact. As a practical
matter, evidence that establishes the requisite intent will ordinarily prove guilty
knowledge as well.
Corrupt persuasion seems to be both the most commonly charged and the most
perplexing of the means used in violation of section 1512 to obstruct federal proceedings
and criminal investigations. There is no consensus among the circuits as to its exact
demands. The Second and Eleventh Circuits have held the element requires no more than
that the government prove that the defendant’s attempts to persuade were motivated by
an improper purpose. The Third Circuit appears to have adopted an “improper purpose
plus” standard, having suggested that under the facts of a given case an accused who —
with the improper intent to obstruct — attempted to persuade a witness to testify falsely
would be guilty of a violation of “corruptly persuading” The District of Columbia Circuit
seems to be similarly inclined, for when it addressed a Poindexter-based, vagueness
challenge it found the element satisfied by evidence that the defendant had attempted to
persuade a witness to violate her legal duty to testify truthfully in court.
When the defendant’s misconduct takes the form of deceiving a potential witness
with the intent the witness later repeat the deception either at federal proceedings or to
federal authorities, the government need prove neither that the potential witness was in
fact deceived nor that there was any particular likelihood that the potential witness would
in fact ever be called upon to testify or report.
Conviction under the omnibus provisions of 1512(b) can only follow upon evidence
proving beyond a reasonable doubt that the defendant intended by his prohibited
misconduct to obstruct a proceeding or the reporting of a crime that was in fact federal.
The federal proceedings protected by obstruction under section 1512 are defined broadly
by statute to cover executive, judicial and legislative branch proceedings. Just as the
statute does not insist upon pending proceedings, so it is complete upon the commission
of the prohibited misconduct committed with qualifying intent.
The defendant’s guilty motive need not be exclusive; the demands of subsection
1512(b) are satisfied as long as the misconduct of the accused was motivated at least in
part by a qualifying intent to obstruct.
Subsection 1512(d) creates an affirmative defense available to any defendant who
can establish by a preponderance of the evidence that his conduct was not otherwise
criminal and was committed for the sole purpose of producing truthful evidence.
In addition, no violation of section 1512 occurs when an individual, whether an
attorney or not, advises a potential witness to assert an available Fifth Amendment
privilege against self-incrimination.
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