Charging Post‑Offense

Obstructive Actions

MAJOR DAVID D. JIVIDEN, USAF\*

**1. INTRODUCTION**

Nothing strikes at the heart of the military justice system more deeply
than post‑offense actions which either \"frustrate\" or \"obstruct\"
justice. Generally, acts which constitute offenses that \"frustrate\"
justice prevent an accused\'s crimes from ever seeing the light of day,
whereas those actions which obstruct justice interfere with the
administration of military justice. /1/ Although often subtle, the
distinction between these types of offenses is critical‑the survival of
a post‑offense charge at trial or on appeal could turn on the military
justice practitioner\'s ability to make the correct call early in the
trial process. Indeed, no less authority than the United States Supreme
Court recently reversed an obstruction of justice conviction against a
federal district judge who lied to the Federal Bureau of Investigations
about his disclosure of a wiretap authorization, finding the facts
relied upon by the Government too speculative to support an obstruction
of justice conviction. /2/

This article\'s purpose is to assist the military justice practitioner
in determining the existence or absence of a military obstruction of
justice offense. Specifically, this article examines current and past
precedent on obstruction of justice offenses, identifies an approach to
address obstruction of justice issues derived from evidentiary factors,
and concludes with a short comment regarding the wisdom of charging
obstruction of justice actions under federal obstruction of justice
statutes.

**II. HISTORY AND ELEMENTS**

**OF THE MILITARY OBSTRUCTION OF JUSTICE OFFENSE**

Unlike the current obstruction of justice offense found in the 1995
Manual for Courts‑Martial under Article 134, previous *Manuals for
Courts-Martial* did not identify obstruction of justice as a specific
Article 134 offense. Nevertheless, when interpreting the then newly
passed Uniform Code of Military Justice in *United States v. Long /3/\'*
the Court of Military Appeals in 1952 held that a disorder which
amounted to \"the obstruction or interference with the administration of
justice in the military system,\" but not meeting the elements of the
federal obstruction of justice statute, was criminalized by clause I of
Article 134, namely those \"disorders and neglects to the prejudice of
the armed forces. \" /4/ Reasoning that \"courts‑martial, summary,
special and general, are an inherent and important part of the military
judicial system,\" the court noted that \"it is important to the good
order and discipline of the armed services that they, in no way, be
influenced improperly by any means, including intimidation of witnesses.
/5/

Currently, the offense of obstruction of justice found in the 1995
*Manual for Courts‑Martial* has four elements:

\(1\) That the accused wrongfully did a certain act;

\(2\) That the accused did so in the case of a certain person against
whom the accused had reason to believe there were or would be criminal
proceedings pending;

\(3\) That the act was done with the intent to influence, impede, or
otherwise obstruct the due administration of justice; and,

\(4\) That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces. /6/

**III. INTERPRETING THE ELEMENTS**

**OF OBSTRUCTION OF JUSTICE**

Elements one and four of an obstruction of justice offense are rather
straightforward. With regard to the first element, the issue is simply
whether an accused did or did not commit the post‑crime act in question.
With regard to the fourth element, it is practically a given that
conduct involving obstruction of justice is prejudicial to good order
and discipline, and service discrediting. /7/ In contrast, the second
and third elements have often been the subject of considerable appellate
review and commentary. Element two raises the issue of what constitutes
a \"criminal proceeding\" for purposes of the obstruction of justice
offense, while the third element involves the difficult task of
discerning and proving the accused\'s intent to obstruct justice from
his acts.

**A. What is a Criminal Proceeding?**

The second element of the obstruction of justice offense requires that
an accused had reason to believe his actions involved a past /8/,
current, or

prospective \"criminal proceeding.\" For purposes of this element, the
term criminal proceeding has been given a broad interpretation,
encompassing not only special and general courts‑martial proceedings,
but also criminal investigations, /9/ summary courts‑martial, /10/ and
Article 32 hearings.\" In fact, prior to the 1984 Manual for
Courts‑Martial, the Army Court of Military Review specifically held that
\"to obstruct the administration of Article 15 punishment necessarily is
an interference with the administration of military justice\" and thus
constitutes obstruction of justice. /12/ The drafters of the 1984 Manual
for Courts‑Martial, /13/ and subsequent military appellate decisions,
/14/ have reaffirmed that an Article 15 proceeding is a \"criminal
proceeding\" within the context of the obstruction of justice provision.

Also falling within the ambit of the term \"criminal proceeding\" with
regard to an obstruction of justice offense are state proceedings. The
Army Court of Military Review in *United States v. Smith /15/* held that
interfering with a state criminal proceeding can be charged as a
military obstruction of justice offense. The court noted that \"nothing
restrains the military from deterring its members from interfering with
a state criminal proceeding \... \[such\] acts are clearly the
discreditable conduct that Article 134 was intended to prohibit.\" /16/

One limitation to the otherwise broad definition of a \"criminal
proceeding\" is a military inspection. Highlighting the difference
between a military \"inspection,\" defined as a commander\'s tool for
insuring \"the overall fitness of \[his\] unit to perform its military
mission,\" (the interference of which could result in \"admonitions or
adverse administrative action,\") and a \"search,\" defined as \"a tool
for the collection of evidence solely for criminal prosecution,\" the
Court of Military Appeals in *United States v. Turner /17/* found that
presenting a false urine sample during a command‑directed urinalysis
inspection did not constitute the offense of obstruction of justice./18/
Instead, such an act by an accused to preclude discovery of drug use
impeded an inspection rather than an investigation. Thus, there was no
attempted impediment of the \"due administration of the processes of
justice\"\' /19/ as required for an obstruction of justice charge. /20/

**B. Finding the Intent to Obstruct Justice**

Establishing the third element of the obstruction of justice offense,
that of intent to obstruct the administration of justice, is relatively
more difficult compared to proving the other elements of the offense.
Because of the myriad factual scenarios which could manifest an
accused\'s subjective intent to obstruct justice, the United States
Court of Appeals for the Armed Forces has refused to establish a
bright‑line standard demarcating acts which constitute this offense and
those which do not. Indeed, like Justice Potter Stewart\'s tongue
in‑cheek guidance for identifying pornography, the United States Court
of Appeals for the Armed Forces has consistently taken a similarly fact
specific \"I know it when I see it\" approach to obstruction of justice.
/21/ This approach was recently reaffirmed in *United States v. Lennette
/22/* where this court held that the difference between those actions
which serve to obstruct justice and those which seek to avoid detection
must be discerned \"on a case by case basis, considering the facts and
circumstances surrounding the alleged obstruction and the time of its
occurrence with respect to the administration of justice." /23/
Accordingly, the ability to analyze a given fact pattern and compare it
to those found in precedent is a must when evaluating and litigating an
obstruction of justice charge. The following two sections present a
survey of cases in which appellate courts were called upon to determine
whether the evidence was sufficient to sustain an obstruction of justice
conviction.

**IV. PRECENDENT**

**A. Interfering with Witnesses**

*1. Attacks and Threats*

The threatening of, and violent interference with, witnesses by an
accused is the typical example of an obstruction of justice offense.
Physically threatening a witness constitutes obstruction of justice,
whether the witness is expected to testify /24/ at the accused\'s
court‑martial or merely had the potential to testify. /25/ Attempting to
force a witness to lie to an investigator by threatening the witness
also constitutes obstruction of justice. /26/ Threatening to cash the
check of a witness who is expected to testify before an Article 32
officer and thus jeopardizing the witness\' job also constitutes
obstruction of justice. /27/ In fact, according to the Air Force Court
of Military Review in *United States v.* Wall, /28/ even comments made
by an accused during the course of a friendship, while replying to his
friends assurance that he would remain silent, that \"he was glad . . .
because he\'d hate to see any bloodshed,\" constituted obstruction of
justice. /29/ The Air Force court observed that

we attribute little significance to the circumstance that the accused\'s
statement would not have deterred \[his friend\] from cooperating with
law enforcement authorities; otherwise, a witness could be harassed with
impunity if that individual simply ignored the remark or refused to be
frightened by it \... the friendship with

\[the witness\] does not lessen the impact of the remark or the nature
of the threat. /30/

It is this line of cases, where there is an obvious nexus between the
accused\'s menacing statements or actions towards a witness and the
intent to obstruct justice, that such wrongful statements or actions are
clearly \"per se prejudicial to good order and discipline and inimical
to the effective functioning of military justice." /31/

*2. Requests*

Whether contacting and asking a witness to engage or refrain from
performing certain actions, including making or not making a statement,
constitutes obstruction of justice initially depends on whether the
request was made by an accused who \"at least surmised that there was a
possibility that, at some time, a criminal proceeding might take place
and he wished to prevent such a proceeding." /32/ Thus, the Court of
Military Appeals in *United States v.* Athey /33/ reversed an
obstruction of justice conviction in a case where the accused advised a
sexual assault victim to lie about the offense where the accused did not
know that investigators had commenced an investigation, nor had reason
to suspect that an investigation would be commenced against him.

Asking a witness to do or say certain things must also be done with the
intent to prevent a criminal proceeding as that term has been broadly
defined. Failing to find the requisite intent on the part of the accused
has led to reversals in cases where an accused simply requested that the
victim not press charges or report the accused\'s offense. In *United
States v. Kirks, /34/* the United States Army Court of Military Review
reversed an obstruction of justice conviction which was predicated on
the accused \"begging \[the parents of a sexual assault victim\] not to
press charges and that if they would withdraw their complaint he would
tell them everything about the three sexual assaults and seek medical
treatment.\" /35/ The court reasoned that the accused in *Kirks:*

did not ask them to lie, nor did he threaten them, offer bribes, harass
them with repeated telephone calls, or indulge in any other unlawful
conduct. Had \[the parents\] acceded to the appellant\'s request, they
would have done nothing unlawful. At most, they would have informed the
authorities that they did not desire to pursue a criminal investigation
of the appellant\'s conduct. We hold that the appellant\'s conduct was
not unlawful. /36/

Similarly, in an earlier case, *United States* v. Asfeld, /37/ the same
court reversed an obstruction of justice conviction based on an
accused\'s anonymous request to the victim of his anonymous obscene
phone calls not to report him. The Army court reasoned that the
statement was intended only to forestall or preclude discovery of his
offense, and that on its face the statement, \"don\'t report me,\" did
not request an affirmative act which would amount to interference with
or obstruction of the due administration of justice. Additionally, the
statement was not uttered in a tone of voice which promised some
unlawful inducement or threatened retaliatory action, but, rather, the
accused\'s action \"amounted to no more than a request that the
prosecutrix do a lawful act which, had she had acceded to the request,
would have had no impact on the administration of justice. /38/

Likewise, in a case of first impression, the Air Force Court of Criminal
Appeals in *United States v. Sorbera /39/* reversed an obstruction of
justice conviction based on an accused\'s telephone conversation with
his ex‑wife regarding the potential testimony of his daughter who had
leveled charges of sexual abuse against him. The accused\'s telephone
call to his ex‑wife was based on advice of civilian defense counsel, who
assumed that the abuse allegations might relate to a custody battle.
/40/ During the telephone call, the accused discussed child support and
custody; described the ramifications to his daughter and his ex‑wife if
his daughter testified against him; urged his ex‑wife to prevent his
daughter from continuing to lie; and asked his ex‑wife to keep his
daughter from coming to Germany to testify against him. /41/

When reversing the obstruction of justice conviction, the Air Force
court cautioned that it \"stop\[ped\] short of holding that an accused
may not be held accountable for criminal misconduct, including
obstruction of justice, solely because he relies upon and follows his
attorney\'s advice." /42/ Nevertheless, the court in *Sorbera* was
persuaded that the accused \"was unaware of the legal consequences of
following his attorney\'s advice and had no reason to believe that
adhering to that advice would result in additional charges." /43/
Accordingly, the court found that accused was denied effective
assistance of counsel and dismissed the obstruction of justice charge.
/44/

In contrast to the above cases, the Court of Military Appeals in United
States v. Guerrero /45/ affirmed an obstruction of justice conviction
where the accused told the occupants of a car he had used to
intentionally run into three victims to lie to the military police and
\"say ‑that the car had been stolen.\" /46/ Notable from the standpoint
of establishing the accused\'s intent to obstruct justice was the fact
that the accused at trial had specifically stipulated that he had made
the aforementioned statements in the vehicle because he believed that
some law enforcement official of the military, such as the military
police or the Criminal Investigation Command, would be investigating his
actions. Similarly, the Army Court of Military Review in United States
v. *Latimer /47/* easily found intent to obstruct justice by an accused
when he used his subordinates to violate regulations pertaining to the
sale of rationed cigarettes, then asked them to help conceal his
misconduct by requesting they recant their stories and providing them
with proposed false excuses for doing so. /48/ In fact, the Army court
quickly dismissed the accused\'s argument that he was merely \"\'seeking
sympathy from his accomplices,\" finding that his actions \"clearly
constitute\[d\] conduct prejudicial to good order and discipline and
\[were\] of a nature to bring discredit upon the armed forces,\" and
that \"his contacts with those individuals \[were\] blatant and
transparent attempts to persuade them to help him impede the ongoing
investigation and thereby ultimately frustrate the due administration of
justice.\" /49/

**B. Other Actions**

As noted earlier, the threshold question when determining whether an
accused\'s actions other than attacks, threats, or requests constitute
obstruction of justice is whether his acts occurred within the context
of a criminal investigation or proceeding, or whether his actions
related to inspections or administrative actions. If the latter, then
the proper charge is not obstruction of justice but rather the Article
134 offense of \"Wrongful Interference with an Adverse Administrative
Proceeding\" /50/ or the Article 92 offense of \"Violation of an
Order.\" /51/ As with interfering with witnesses, the second question a
military justice practitioner should answer is whether an accused\'s
intent to obstruct justice reasonably can be determined by his or her
actions. For example, the Court of Military Appeals in *Finsel /52/*
found that staging a firefight to account for an improper loss of a
weapon during an unauthorized visit to a Panamanian bar constituted an
obstruction of justice offense:

where a weapon is missing under the circumstances shown
here‑particularly where the missing weapon is on loan from a
superior‑the record is sufficient from which a reasonable factfinder
could conclude beyond a reasonable doubt that the appellant \'had reason
to believe there were or would be criminal proceedings pending\' and
that his actions were done \'with the intent to \... obstruct\' those
proceedings. /53/

An accused\'s actions in destroying stolen, blank, I.D. cards when his
accomplice was taken into custody and questioned was sufficient evidence
to base an obstruction of justice conviction according to the United
States Court of Appeals for the Armed Forces in *United States v.
Lennette. /54/* The *Lennette* court observed that the accused\'s
knowledge that: \"his cohort in crime had been arrested \... he was
personally implicated by his presence at the scene. . . he \[might be\]
implicated during the questioning of his co‑actor, \[his\] access to
blank cards would become known to investigating agents,\" all indicated
\"his conduct fell squarely within the elements of the military offense
of obstruction of justice. \" /55/ Also finding sufficient intent from
the evidence at trial, the Army Court of Military Review in *United
States v. Ridgeway /*56/ rejected an accused\'s appeal that his throwing
marijuana seized from his room from a window was the result of panic and
not the result of a specific intent on his part to obstruct justice. The
court found that his admissions that he \"knew that the marijuana
possibly would be used against him in a criminal proceeding and that his
intent in removing it was to keep himself \'out of trouble,\' was
sufficient to sustain the conviction. \" /57/ Similarly, an accused
driving a witness to the airport for a flight out of the state 51 or
country /59/ was sufficient to sustain convictions for obstruction of
justice, as was the act of a military policeman in concealing money
which came into his possession which was possible evidence of a crime by
another .60 Destroying a witness\' property constituted an obstruction
of justice offense in one early Air Force Board of Review case, *United
States v. Le Sage* . /61/ The *Le Sage* court found that an accused\'s
post‑trial actions in damaging the tires on a witness\'s car clearly
constituted an obstruction of justice, reasoning that the \"due
administration of justice is possible only where those having powers or
duties in connection therewith, or participating therein, are protected
against violence to their persons or property, or other improper
influences." /62/

An obstruction of justice offense predicated on the accused lying to
Korean police about who was driving a vehicle when the car struck a
Korean /63/

child was upheld on appeal in *United States v. Bailey.* The Army Court
of Military Review held that giving Korean police false information
intended ultimately for United States military authorities obstructed
the military justice of the United States and was service discrediting
and prejudicial to good order and discipline:

It can hardly be gainsaid that it brings discredit upon the armed forces
of the United States when a soldier makes false statements to foreign
law

enforcement officials regarding an offense in which the soldier is
involved with a citizen of the host country. Further, it is obviously
prejudicial to good order and discipline when a soldier relates false
information which he knows or reasonably should know will ultimately
come to the attention of responsible military authorities of the United
States. /64/

Communications with accomplices or co‑conspirators can also be the basis
for an obstruction of justice charge. /65/ In *United States v.
Williams, /*66/ the Court of Military Appeals held that asking an
acquaintance to \"keep an eye on\" the victim prior to a stabbing and
then urging the cohort to leave the country \"because of the ongoing
investigation\" may be charged as a military obstruction of justice
offense. The court rejected the accused\'s argument that the court must
base its interpretation of Article 134 on the interpretation given by
Federal courts of the federal obstruction of justice statutes. /67/
Similarly, the Army Court of Military Review held that advising an
accomplice to a larceny to \"take five or six aspirin in order to \'mess
up\' a scheduled polygraph examination the next day\" constituted
obstruction of justice. /68/

**V. A SUGGESTED APPROACH**

The above survey of available obstruction of justice precedent lends
itself to a three‑prong approach a military justice practitioner can use
when confronted with an accused\'s post‑offense obstructive conduct.
Assuming the identity of the accused as the person who committed the
obstructive act can be established, the military justice practitioner
should ask himself or herself the following three questions:

1\. In what context did the actions occur? If the allegedly obstructive
actions occurred in the context of a potential military, state, or
foreign criminal investigation, an Article 15 proceeding, an Article 32
investigation, a summary, special, or general court‑martial, or a state
or foreign criminal proceeding, the \"criminal proceeding\" element of
the offense is satisfied. In contrast, if the obstructive behavior
occurred in the course of an administrative inspection or civil
proceeding, then the obstruction of justice offense might be subject to
challenge. Note, however, if \"other criminal proceedings or other
official acts\" were taking place \"that would lead to disciplinary
action\" a conviction defensible on appeal could result, /69/ even if
the immediate context is an administrative or similar proceeding.

2\. What did the obstructive action consist of? Assaults and threats
directed at \"witnesses, a person acting on charges or an Article 15, an
investigating officer, or a party" /70/ are obvious manifestations of an
accused\'s intent to obstruct justice, and thus will likely be found to
constitute obstruction of justice. Other less obvious acts need to be
analyzed with respect to whether the accused\'s intent to obstruct
justice can be established from the acts in question. For example,
\"using bribery, intimidation, misrepresentation, or force or threat of
force\" to delay or \"prevent communication of information relating to a
violation of any criminal statute of the United States to \[persons\]
authorized to conduct or engage in investigations or prosecutions of
such offenses\" is specifically recognized in the *Manual for
Courts‑Martial* as illustrative of acts constituting obstruction of
justice . /71/ However, at least one court has held that the
\"drafters\' explanation exceeds the permissible limits of the military
offense of obstruction of justice, /72/ and that although a \"list of
obstructionist conduct \[is\] set forth in the Manual \... the Manual
nonetheless contemplates an act done without legal right or for some
other sinister purpose.\" /73/ Thus, an act charged as obstructing
justice requires proof that it is \"an act which tends to corrupt or
subvert the administration of justice." /74/

3\. Does the accused\'s act manifest his subjective /75/ intent to
\"obstruct the due administration of justice\" as that term has been
broadly defined? The key to analyzing the accused\'s intent in this
regard is to examine two issues. First, whether the evidence is
sufficient to show beyond a reasonable doubt that the accused had reason
to believe that criminal proceedings were, or would be, pending. Second,
whether the evidence establishes that accused\'s acts were intended to
\"influence, impede, or otherwise obstruct the due administration of
justice." /76/ Quite often, the same facts in a case can be utilized to
address both issues.

Establishing that an accused\'s acts occurred after the accused or the
accused\'s co‑conspirator had been arrested could aid in proving that
the accused had reason to believe that there were criminal proceedings
pending. /77/ Likewise, so would the fact that the accused was aware
that damning evidence of a criminal act would likely be linked to the
accused, especially if the accused then acted to destroy the evidence
/78/ or attempted to get his or another\'s \"story straight \" /79/
Conversely, the lack of these factors could hinder the government\'s
ability to prove an accused had reason to believe that a criminal
investigation or proceeding was imminent or in progress.

Similarly, with regard to the second issue of determining whether the
charged acts were committed with obstructive intent, asking witnesses
/80/ coconspirators, /81/ or other parties to lie or mislead judicial or
law enforcement officials, destroying or tampering with evidence, /82/
and driving a witness out of the state /83/ or country /84/ are
compelling evidence of intent to obstruct the administration of justice.
In contrast, merely \"begging\" or asking someone to withdraw a
complaint, or engaging in a similarly passive or legal act which does
not impact the administration of justice, provides little evidence of
obstructive intent on the accused\'s pan and would thus make a
conviction difficult, /85/ especially if such actions were the result of
advice from counsel. /86/

Just as each case is unique, so is the multitude of facts which could
conceivably constitute a military obstruction of justice charge. By
analyzing the facts of a particular case within the context of the above
three questions the military justice practitioner can begin to evaluate
any given fact pattern to determine the relative strength or weakness of
an obstruction of justice charge and, perhaps more importantly, identify
what issues and facts need further exploration in order to prove or
disprove the charge. Such a resourceful analysis is crucial when
examining an accused\'s actions for a viable obstruction of justice
charge. As the Court of Appeals for the Armed Forces noted, \"\[w\]ith
minimal creativity, one can easily conjure up factual circumstances in
which, in particular contexts, the culprit\'s actions might be simply
covering his tracks or, instead, might fall within the scope of
obstruction of justice.\" /87/

**VI. THE FEDERAL STATUTORY OFFENSE**

There are primarily three federal statutes dealing with the interference
of

the judicial process: 18 U.S.C.A. Sec. 1505, /88/ for the obstruction of
proceedings

before departments, agencies, and committees; 18 U.S.C.A. Sec. 1512,
/89/ for

witness tampering; and, 18 U.S.C.A. Sec. 1503, /90/ for the threats,
intimidation and

retaliation against grand and petit jurors and judicial officers.
Although obstruction of justice military jurisprudence is replete with
references to the federal statutes, /91/ the \"broad scope of the
offense of obstructing justice under Article 134, UCMJ,\" /92/ exists
\"independent of other Federal obstruction of justice offenses.\" /93/
Moreover, \"a facial similarity between a military offense and a federal
crime does not mean that the offense must be brought under the third
clause of Article 134. /94/

Accordingly, only when a federal statute is used as the basis for
charging an obstruction of justice offense under the third clause of
Article 134, /95/ UCMJ, are the elements of the federal statute
controlling as to the definition of the offense alleged. /96/ The
additional constraints and elements accompanying the federal statute,
when used as the basis for a military obstruction of justice charge
under clause 3 of Article 134, make such an approach inadvisable at best
in most cases. /97/ For example, in United States v. Aguilar, /98/ the
Supreme Court reversed a 15 U.S.C Sec. 1503 obstruction of justice
conviction based on uttering false statements to an investigative agent
who was only a potential witness. The court reasoned that \"it cannot be
said to have the \'natural and probable effect\' of interfering with the
due administration of justice\" that lying to an unsubpoenaed
investigating agent would result in the false statement being \"provided
to the grand jury.\" /99/ Because of the UCMJ\'s different statutory
milieu, /100/ the same fact pattern, would likely result in a
sustainable Article 134 obstruction of justice offense conviction. /101/

**VII. CONCLUSION**

The Court of Appeals for the Armed Forces\' current fact‑specific
approach to obstruction of justice offenses, as exemplified in *United
States v. Lennette,* /102/ is well reasoned. Such a standard is
appropriate for an Article 134 offense and is consistent with precedent.
Ultimately, a military prosecutor, using an accused\'s actions or
statements, I must prove that an accused intended to \"obstruct the due
administration of justice,\" as that term has been expansively defined
in the military context, in order to secure an obstruction of justice
conviction at trial or on appeal. Absent such a fact­-specific approach ,
the government\'s ability to prove an obstruction of justice charge
would be considerably diminished. In light of the pernicious and
disruptive nature of this conduct in the military environment, a more
rigid approach to obstruction of justice offenses would handicap the
prosecution of those who would undermine the integrity of the military
justice process.

\*Major Jividen (B.S., B.A., Miami University; JD., University of
Cincinnati College of Law) is a member of the Utility Litigation Team,
Tyndall AFB, Florida. He is a member of the Ohio, Florida, and District
of Columbia Bars.

1\. See United States v. Lennette, 41 W. 488, 489 (C.A.A.F. 1995), where
the United States Court of Appeals for the Armed Forces makes this
distinction between post‑crime actions.

2\. United States v. Aguilar, 115 S.Ct. 2357 (1995).

3\. 6 C.M.R. 60 (C.M.A. 1952).

4\. Id. at 65. See also United States v. Williams, 29 M.J. 41 (C.M.A.
1989).

5\. 6 C.M.R. at 65. Surprisingly, despite the Long case, and the
well‑reasoned opinion in United States v. Favors, 48 C.M.R. 873
(A.C.M.R. 1974) (the court held restricting obstruction of justice to
cases where charges have been preferred is contrary to military law and
would be seriously detrimental to the orderly administration of justice
in the armed forces), the issue of whether formal charges were a legal
prerequisite to a military obstruction of justice charge remained
unsettled in military jurisprudence. See, e.g., United States v.
Daminger, 31 C.M.R. 521 (A.F.B.R. 1961) (stating that the offense of
obstruction of justice must relate to a \"proceeding pending,\" such as
the preferring of formal sworn charges). See also Bryson, Obstruction of
Justice: The Federal and Military Offenses, 29 THE ARMY LAW. 1 (19715),
where the author discusses the concern over the earliest point in time
at which military proceedings could be considered pending for an
obstruction of justice offense, yet fails to clearly note how this
issue\'s resolution is not tied to federal statutory law because, as the
author himself admits, \"separate and apart from the offense of
obstruction of justice as defined by federal statutes is the military
offense of obstruction of justice alleged under clauses one and two of
Article 134, UCMJ.\" Id. at 3, 4. Twenty‑nine years after Long, the Air
Force Court of Military Review, in United States v. Chodkowski, 11 M.J.
605, 606‑07 (A.F.C.M.R. 1981), finally adopted the Army analysis and
observed that \"obstruction or interference with the administration of
military justice has long been recognized as an Article 134 offense
independent of other federal statutes \... \[t\]he impact of
\[wrongfully influencing, threatening or impeding a witness or potential
witness\] is equally pernicious and disruptive whether or not formal
charges are pending. To hold otherwise would permit the integrity of the
court‑martial process to be compromised on the eve of its birth.\"
Accord United States v. Jones, 20 M.J. 38 (C.M.A. 1985); United States
v. Ridgeway, 13 M.J. 742 (A.C.M.R. 1982). See also United States v.
Tedder, 18 M.J. 777 (N.M.C.M.R. 1984) (adopting Chodkowski\'s rationale
when finding that obstruction of justice is a cognizable offense under
Article 134, regardless of the pendency of a judicial proceeding).

6\. MANUAL FOR COURTS‑MARTIAL (1995), Pt. IV, para. 96(b). Considering
the elements of this offense \"as recognized and prescribed by the
President in the Manual for Courts‑Martial, \[as opposed to merely the
statutory elements of Article 134\].\" the court in United States v.
Oatney, 41 M.J. 619, 628‑29 (N.M.Ct. Crim. App. 1994), found that
communicating a threat was not multiplicious for findings or sentencing
with the offense of obstruction of justice based on the same threat. In
short, the court reasoned that the elements of communicating a threat
and the elements of obstruction of justice required proof of different
elements, and that each addressed a separate evil or societal harm. See
also United States v. Benavides, 43 M.J. 723 (A. Ct. Crim. App. 1995)
(obstruction of justice charge, when communicating a threat is its actus
reas, requires additional elements).

7\. Any act improperly influencing military justice is per se
prejudicial to good order and discipline according to some courts.
United States v. Long, 6 C.M.R. 60 (C.M.A. 1952); United States v.
Caudill, 10 MJ 787 (A.F.C.M.R. 1981). Notwithstanding this per se
prejudice to good order and discipline, one court has analyzed the
fourth element of the obstruction of justice offense from the
perspective of the service discrediting prong and apparently found it is
met if the accused\'s act lacked integrity. United States v. Smith, 32
M.J. 567 (A.C.M.R. 199 1) reversed on other grounds, 34 M.J. 319 (C.M.A.
1992).

8\. In one of its earliest decisions regarding this offense, the Court
of Military Appeals upheld an obstruction of justice conviction based on
a physical assault on a witness in Long, 6 C.M.R. 60 (C.M.A. 1952). See
also United States v. Le Sage, 22 C.M.R. 853 (A.F.B.R. 1956). Although
the rationale for specifically including post‑trial obstructive actions
within the obstruction offense is left unenunciated in these decisions,
one possible reason could be the stark contrast between civilian and
military justice post‑trial procedures. Contrary to civilian verdicts,
military findings and sentences are not approved and finalized until a
lengthy review process is completed. See Articles 60‑70, Uniform Code of
Military Justice \[hereinafter UCMJ\] (codified at 10 U.S.C.A. Secs. 860
870) (West Supp. 1995). Under this reasoning, an accused who intimidates
or injures a witness after his court‑martial but before his conviction
is final is still impeding the administration of military justice.

9\. United States v. Athey, 34 M.J. 44 (C.M.A. 1992); United States v.
Guerrero, 28 M.J. 223 (C.M.A. 1989). See also United States v. Zaccheus,
31 M.J. 766 (A.C.M.R. 1990), where the Army Court of Military Review
held that obstructing the investigation of an accused\'s actions was
sufficient to constitute an obstruction of justice offense despite the
failure of the specification to allege the criminal nature of the
investigation and its relation to a proceeding under the UCMJ).

10\. Long, 6 C.M.R. 60 (C.M.A. 1952).

11\. United States v. Daminger, 31 C.M.R. 521 (A.F.B.R. 1961).

12\. United States v. Delany, 44 C.M.R. 367 (A.C.M.R. 1971).

13\. MANUAL FOR COURTS‑MARTIAL (1984), Pt. IV, para. 96(c), notes that
the \"the term criminal proceeding includes nonjudicial punishment
proceedings\"

14\. Approximately 22 years after the Army Court of Military Review
reached the same conclusion in Delany, 44 C.M.R. 367 (A.C.M.R. 1971),
the Air Force Court of Military Review in United States v. Larson, 39
M.J. 516, 517 (A.F.C.M.R. 1993), specifically held that the
\"nonjudicial punishment procedure in the United States Air Force is a
criminal procedure for the purpose of the offense of obstruction of
justice.\"

15\. United States v. Smith, 32 M.J. 567, 569 (A.C.M.R. 1991). Although
the Court of Military Appeals reversed this case due to a factual error
by the lower appellate court, it noted that an obstruction of justice
offense can arise from interfering with state criminal proceedings,
specifically finding that the \"impact of the charged conduct on the
later, but nonetheless probable, military investigation brought it
within the intended scope of Article 134. \" United States v. Smith, 34
M.J. 322 (C.M.A 1992). See also the concurring comments of Judge Cox in
Smith, who stated that \"in light of Solorio v. United States , 483 U.S.
435 (1987), there can be no distinction between obstructing federal or
military prosecutions on one hand and obstructing state prosecutions on
the other hand, and there are no \'strictures\' in the Manual for
Courts‑Martial that purport to so limit the scope of the offense.\" Id.
at 325.

16\. Smith, 32 M.J. 567,570 (A.C.M.R. 1991).

17\. 33 M.J. 40 (C.M.A. 1991).

18\. Id. at 41‑42.

19\. Id. at 42‑43. Accord United States v. Armstead, 32 M.J. 1013, 1015
(N.M.C.M.R. 1991) (substitution of urine during urinalysis following
unauthorized absence was a \"collateral administrative result, not part
of the military justice processing of the absence offense \... the
inspection itself was not pan of the administration of military
justice.\").

20\. MANUAL FOR COURTS‑MARTIAL (1995), Pt. IV, para. 96a, identifies
another Article 134 violation which could be charged in this situation,
\"Wrongful Interference with an Adverse Administrative Proceeding.\" The
explanation under this section notes that the administrative proceeding
\"includes any administrative proceeding or action, initiated against a
servicemember, that could lead to discharge, loss of special or
incentive pay, administrative reduction in grade, loss of a security
clearance, bar to reenlistment, or reclassification.\" The intent
remains the same as one charged with obstruction of justice, \"the
person had reason to believe that there were or would be an adverse
administrative proceeding pending.\" Id

21\. Compare Jacobellis v. Ohio, 378 U.S. 184 (1974) with United States
v. Lennette, 41 M.J. 488 (C.A.A.F. 1995).

22\. Lennette, 41 M.J. 488 (C.A.A.F. 1995).

23 Id. at 490 citing United States v. Finsel, 36 M.J. 441, 443 (C.M.A.
1993).

24\. United States v. Rossi, 13 C.M.R. 896 (A.F.B.R. 1953) (witness
threatened with assault when accused stated he knew where the witness
lived and sooner or later would get him if he testified). See also
United States v. Chodkowski, 11 M.J. 605, 606 (A.F.C.M.R. 1981) (accused
threatened witness by stating that if witness \"knew what was good for
him, he would not testify.\")

25\. United States V. Caudill, 10 M.J. 787 (A.F.C.M.R. 1981) (accused\'s
threat to witness, \"If I go down, there will be some bodies floating in
the bayou,\" when done for purpose of affecting testimony, constituted
obstruction of justice, even if accused was not on notice that witness
would be called at a future trial); United States v. Rosario, 19 M.J.
698, 699 (A.C.M.R. 1984) (although the Government did not intend to call
the witness to testify, telling the witness\'s friend that \"his buddy\"
was \"f ‑‑‑ king up\" and advising him to speak to the witness while
making a \"gesture of drawing his finger across his throat,\"

constituted obstruction of justice.) See also United States v.
Standifer, 40 M.J. 440, 445 (C.M.A. 1994) where the court held that
although an accused could not be legally convicted of subordination of
prejury where accused did not call a witness to testify, accused could
be convicted of obstructing justice for having earlier approached the
witness and asked her to testify falsely.

26\. United States v. Oatney, 41 M.J. 619 (N.M.Ct.Crim. App. 1994)
(threatening a witness and the witness\'s wife with injury unless he
provided false information to the Naval Investigative Service Agents
during investigation constituted obstruction of justice).

27\. United States v. Daminger, 31 C.M.R. 521 (A.F.C.B.R. 1961).

28\. 13 M.J. 964 (A.F.C.M.R. 1982).

29\. Id. at 965.

30\. Id. Similarly, the \"\[o\]bstruction of justice does not require
proof of an individual communicating a present threat to injure, and in
certain situations may not require proof of any underlying offense.\"
United States v. Oatney, 41 M.J. 619, 628‑29 (N.M.Ct. Crim. App. 1994).

31\. United States v. Caudell, 10 M.J. 787, 789 (A.F.C.M.R. 1981). See
also United States v. Rossi, 13 C.M.R. 896 (A.F.B.R. 1953) citing United
States v. Long, 6 C.M.R. 60 (C.M.A. 1952) that \"it is axiomatic that
courts‑martial would be unduly hampered and influenced adversely if
witnesses were not free to testify without fear of molestation.\"

32\. United States v. Athey, 34 M.J. 44, 49 (C.M.A. 1992).

33\. Id.

34\. 34 M.J. 646 (A.C.M.R. 1992).

35\. Id. at 650.

36\. Id. at 651.

37\. 30 M.J. 917, 928‑29 (A.C.M.R. 1990).

38\. Id. at 928‑29. Similarly, in United States v. Smith, 39 M.J. 448
(C.M.A. 1994), the Court of Military Appeals reversed a finding of
guilty where an accused contacted the boyfriend of his underage daughter
and promised to give his consent to the marriage if the boyfriend
\"would contact\" his daughter regarding the accused\'s sexual abuse of
his daughter. The court reasoned that:

the promise of future parental consent to marry was allegedly made to
the third party

as consideration for his contacting the witness. Moreover, there was no
allegation left in

the specification as to when the third party was required to contact the
witness, or whether such contact should entail any communications
including the promise of future marital consent by appellant.

Id. at 452.

39\. 43 M.J. 818 (A.F. Ct. Crim. App. 1996).

40\. Id. at 820.

41\. Id.

42\. Id. at 822.

43\. Id. The court in obiter dictum distinguished the facts in Sorbera
from those situations where an accused \"knowingly\" commits a criminal
act:

When an attorney advises an accused to act in a manner the accused knows
is criminal, the accused should not escape responsibility because his
attorney\'s advice was bad. For example, acting on advice of counsel
would not afford an accused any protection if he were to injure someone,
violate a lawful regulation or take property belonging to someone else.
The criminality of these acts are self evident. Similarly, when an
accused receives deficient advice which might result in criminal
prosecution and chooses to follow that advice after having the legal
consequences fully explained, he does so at his own peril.

Id. Upon reflection, the result in Sorbera is probably consistent with
Army Court of Military Review precedent reversing obstruction of justice
convictions because accuseds in those cases did not threaten, offer
bribes, or request unlawful or affirmative acts which would interfere
with or obstruct the due administration of justice. See United States v.
Kirks, 34 M.J. 646 (A.C.M.R. 1992); United States v. Asfeld, 30 M.J. 917
(A.C.M.R. 1990). For example, United States citizens cannot be compelled
to travel by subpoena from the United States to testify at
courts‑martial, United States v. Bennett, 12 M.J. 463 (C.M.A. 1982), and
requesting someone not to lie is even more innocuous than asking someone
not to press charges. Accordingly, the court in Sorbera could likely
have reversed the obstruction of justice conviction on the grounds of
legal insufficiency and avoided the constitutional question of
ineffectiveness of counsel. See, e.g., United States v. McCaukley, 37
C.M.R. 345, 350 (C.M.A. 1967), where the court observed \"\[g\]rave
constitutional questions are matters properly to be decided by this
Court but only when they inescapably come before us for adjudication . .
.\" quoting United States v. Rumely, 345 U.S. 41, 48 (1953).

44\. United States v. Sorbera, 43 M.J. 818, 822 (A.F.Ct. Crim. App.
1996).

45\. 28 M.J. 223 (C.M.A. 1989).

46\. Id. at 225.

47\. 30 M.J. 554 (A.C.M.R. 1990).

48\. Id. at 558.

49\. Id. See also United State v. Simpkins, 22 M.J. 924, 925 (N.M.C.R.
1986) (obstruction of justice conviction affirmed where accused asked
one witness, \"Did NIS talk to you? Don\'t say anything about me taking
the camera,\" as well as when he told a second witness, \"Keep quiet or
lie about me stealing the camera.); United States v. Tedder, 18 M.J.
777,778 (N.M.C. M.R. 1984) (Accused, a naval legal officer, obstructed
justice by informing witness with whom he had engaged in fraternization
that the crime \"would not be discovered if they kept their \'stories\'
straight!). Accord United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1983)
(affirming conviction for attempted obstruction of justice where accused
approached witness with proposed alibi in exchange for money).

50\. MANUAL FOR COURTS‑MARTIAL (1995) Pt. IV, para. 96a.

51\. Id. at para. 16, See, e.g., United States v. Turner, 33 M.J. 40
(C.M.A. 1991).

52\. 36 M.J. 441 (C.M.A. 1993).

53\. Id. at 444‑45 (cites omitted). in light of the court\'s holding
that an obstruction of justice offense can be affirmed where the
accused\'s had reason to believe either \"there were or would be
criminal proceedings pending\" against a certain person, it is doubtful
that the Air Force Court of Criminal Appeals would follow its precedent
in United States v. Kellough, 19 M.J. 871 (A.F.C.M.R. 1985), where the
court found that the act of planting marijuana in the well wheel of his
former wife\'s car in an attempt to make it appear she violated the UCMJ
and cause disciplinary action to be taken against her was not an
obstruction of justice because \"criminal charges were not pending
against his \[former wife\] at the time the accused planted marijuana on
her car.\" Clearly, at the time the accused in Kellough planted the
evidence (to improve his chances of receiving custody of his minor
child), he had reason to believe that there would be criminal
proceedings pending against his wife for drug possession, and that his
actions were done with the stated intent to obstruct those proceedings,
misleading the commander and the court about the cause of the marijuana
in his wife\'s car. This is the only way his admitted motive of
receiving custody of his child would have succeeded.

54\. 41 M.J. 488 (C.A.A.F. 1995).

55\. Id. at 490‑91.

56\. United States v. Ridgeway, 13 M.J. 742 (A.C.M. R. 1982).

57\. Id. at 747. Should the element of intent to obstruct justice be
lacking, under the 1995 Manual an accused could still be convicted of
the Unlawful Destruction, Removal, or Disposal of Property to Prevent
Seizure, MANUAL FOR COURTS‑MARTIAL (1995), Pt. IV, Para. 103, as the
only intent required under that offense is intending to prevent seizure
of property others were authorized and endeavoring to seize.

58\. United States v. Morris, 40 M.J. 792 (A.F.C.M.R. 1994) (finding
that the actions of an accused, being aware of \"imminent possibility of
criminal justice proceedings,\" who \"went to his unit to get leave,
returned to the house, packed the children\'s bags,\" and took them to a
\"nearby commercial airport,\" and telling one of the witnesses \"not to
tell anybody about having sex with him\" constituted obstruction of
justice).

59\. United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990).

60\. United States v. Favors, 48 C.M.R. 873, 875 (A.C.M.R. 1974).

61\. United States v. Le Sage, 22 C.M.R. 853 (A.F.B.R. 1956).

62\. Id. at 855.

63\. 28 M.J. 1004 (A.C.M.R. 1989).

64\. Id. at 1007.

65\. As a general proposition, some courts have observed that an
obstruction of justice charge based on a communication between
accomplices or co‑conspirators is based on the first clause of Article
134, those offenses which involve disorders or neglects to the prejudice
of good order and discipline in the armed forces, rather than on the
second clause, which involves conduct of a nature to bring discredit
upon the armed forces. See, e.g., United States v. Latimer, 30 M.J. 554,
558 at n.5 (A.C.M.R. 1990).

66\. 29 M.J. 41 (C.M.A. 1989).

67\. Id. at 42.

68\. United States v. Rehak, 25 M.J. 790, 791 (A. C.M.R. 1988).

69\. See, e.g., United States v. Turner, 33 M.J. 40, 43 (C.M.A. 1991)
(distinguishing a pure inspection from other events, citing, United
States v. Jones, 20 M.J. 38, 40 (C.M.A. 1985). For those obstructive
acts committed within the context of an inspection or other
administrative action, the proper charge would probably be the Article
134 offense of Wrongful Interference with an Adverse Administrative
Proceeding. MANUAL FOR COURTS‑MARTIAL (1995), Pt. IV, para. 96a.

70\. See, e.g., Para 96(c), Part IV, MCM 1995. (Explanation of offense).

71\. Id. In United States v. Simpkins, 22 M.J. 924, 927 (N.C.M.R. 1969),
the court concluded that the acts of bribery, intimidation,
misrepresentation, force or threat of force, as illustrated in paragraph
96c, are not exclusive but only examples of obstructing justice.

72\. United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990).

73\. Id. at 928.

74\. Id.

75\. United States v. Finsel, 36 M.J. 441,445 (C.M.A. 1993); United
States v. Athey, 34 M.J. 44, 49 (C.M.A. 1992). See also United States v.
Benavides, 43 M.J. 723 (A. Ct. Crim. App. 1995) (where actus reas of
obstruction of justice offense is communicating a threat, two additional
elements complete the offense: the specific mens rea to \"influence
impede or otherwise influence the due administration of justice,\" and
communicating the threat in the case of a person against whom an accused
had reason to believe there were or would be criminal proceedings
pending).

76\. See, e.g., Finsel, 36 M.J. at 445.

77\. See, e.g., United States v. Lennette, 41 M.J. 488, 490 (C.A.A.F.
1995).

78\. United States v. Ridgeway, 13 M.J. 742 (A.C.M.R. 1982).

79\. See, e.g., United States v. Tedder, 18 M.J. 777 (N.M.C.M.R. 1984).

80\. See, e.g., United States v. Guerrero, 28 M.J. 223 (C.M.A. 1989).

81\. See, e.g., United States v. Williams, 29 M.J. 541 (C.M.A. 1989).

82\. See, e.g., United States v. Lennette, 41 M.J. 488; United States v.
Ridgeway, 13 M.J. 742 (A.C.M.R. 1982).

83\. United States v. Morris, 40 M.J. 792 (A.F.C.M.R. 1994).

84\. United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990).

85\. See, e.g., United States v. Kirks, 34 M.J. 1646 (A.C.M.R. 1992);
United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990), see also United
States v. Smith, 39 M.J. 448 (C.M.A. 1994).

86\. United States v. Sorbera, 43 M.J. 818 (A.F.Ct. Crim. App. 1996).

87\. United States v. Lennette, 41 MI 488, 490 (C.A.A.F. 1995).

88\. 18 U.S.C.A. Sec. 1505 (West Supp. 1995) states:

Whoever, with the intent to avoid, evade, prevent, or obstruct
compliance, in whole or in part, with any civil investigative demand,
duly and properly made under the Anti‑Trust 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; or

Whoever corruptly, or by threats or force, or by any threatening letter
or communication influences, obstructs, or impedes or endeavors to
influence, obstruct, or impede the due and proper administration of the
law under which any pending proceeding is being had before any
department or agency of the United States, or the due and proper
exercise of power of inquiry under which any inquiry or investigation
which is being had by either House, or any committee of either House or
any joint committee or the Congress, shall be fined under this title or
imprisoned not more than five years, or both.

89\. 18 U.S.C.A. Sec. 1512 (West Supp. 1995) states in pertinent part:

(a)(1) Whoever kills or attempts to kill another person with intent to

\(A\) prevent the attendance or testimony of any person in an official
proceeding;

\(B\) prevent the production of a record, document, or other object, in
an official proceeding; or

\(C\) prevent the communication by any person to a law enforcement
officer or judge Of the United States of information relating to the
commission or possible commission of a Federal offense or a violation of
conditions of probation, parole or release pending judicial proceedings,
shall be punished as provided in paragraph (2).

This statute also prohibits attempting the above by means less then
murder, such as by intimidation, physical force, threats, or harassment.
18 U.S.C.A. at Secs. 1512(b) and (c).

90\. 18 U.S.C.A. Sec. 1503(a) (West Supp. 1995) states:

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, or corruptly or by threats or force,
or by any threatening letter or communication influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished as provided in subsection
(b).

91\. See, e.g., United States v. Asfeld, 30 M.J. 917, 927n.10 (A.C.M.R.
1990) (referencing the overlap between the United States Code and
military precedent).

92\. United States v. Rosario, 19 M.J. 698,700 (A.C.M.R. 1984).

93\. United States v. Williams, 29 M.J. 541,542 (C.M.A. 1989); See also
United States v. Long, 6 C.M.R. 60 (C.M.A. 1952); United States v. Le
Sage, 22 C.M.R. 853 (A.F.B.R. 1956).

94\. Id. Accord United States v. Dowlat, 28 M.J. 958 (A.F.C.M.R. 1989)
(affirming an obstruction of justice conviction based upon
communications between a military training instructor and trainees to
\"get their stories straight\"). But see United States v. Chasteen, 17
M.J. 580 (A.F.C.M.R. 1983) (obstruction of justice charge based upon 18
U.S.C. 15 10 dismissed because accused\'s black marketing activities
which included communications between accomplices not proscribed by the
statute which was designed to deter interference with potential
witnesses prior to initiation of judicial proceedings).

95\. Clause 3 offenses involve noncapital crimes or offenses which
violate federal law, including law made applicable through the Federal
Assimilative Crimes Act. Paragraph 60c, Part IV, MCM (1995).

96\. United States v. Rosario, 19 M.J. 698, 700 (A.C.M.R. 1984); United
States v. Ridgeway, 13 M.J. 742, 746 (A.C.M.R. 1982).

97\. For an excellent overview of the myriad of limiting issues faced in
prosecutions based on federal statutes, which are absent in military
prosecutions based on the first 2 clauses of Article 134, See
Fitzpatrick & Parker, Ninth Survey of White Collar Crime Obstruction of
Justice, 31 AM.CRIM.L.REV. 747 (1994).

98\. 115 C.Ct. 2357 (1995).

99\. Id. at 2363.

100\. See, e.g., United States v. Le Sage, 22 C.M.R. 853 (A.F.B.R. 1956)
wherein the court stated:

But apart from, the federal statutes denouncing it as an offense,
obstruction of justice has long been recognized as a military offense in
violation of Clauses 1 and 2 of Article 134 (and its antecedent Article
of War), denouncing as offenses all disorders and neglects to the
prejudice of good order and discipline in the armed forces, and all
conduct of a nature to bring discredit upon the armed forces
(Winthrop\'s Military Law and Precedents, 2d ed, p 728).

Id. at 855. (Citations omitted).

101\. See United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990); See
also United States v. Simpkins, 22 M.J. 924 (N.M.C.R. 1986); United
States v. Bailey, 28 M.J. 1004 (A.C.M.R. 1989).

102\. 41 M.J. 488 (C.A.A.F 1995).