*

Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation. 

UNITED STATES of America, Plaintiff-Appellant,

v.

Branch D. KLOESS, Defendant-Appellee.

No. 00-13080.

United States Court of Appeals,

Eleventh Circuit.

May 18, 2001.

Appeal from the United States District Court for the Middle District of Alabama.(No. 00-00046-CR-N), W.

Harold Albritton, III, Chief Judge.

Before EDMONDSON, HILL and GIBSON*

, Circuit Judges.

HILL, Circuit Judge:

Branch D. Kloess was charged with two counts of obstruction of justice. The district court granted

his motion to dismiss the indictment for failure to establish a violation of the charged offense, and the

government filed this appeal.

I.

Branch D. Kloess is an attorney who represented Gene Easterling in May of 1997, when Easterling

was given a probated sentence in the United States District Court for the Middle District of Alabama. While

on probation for the federal offense, Easterling was stopped for a traffic violation and found to be in

possession of a pistol, a violation of the terms of his probation. He provided the police officer with a driver's

license showing the name Craig Wallace, and was subsequently charged in the Montgomery Municipal Court

under that name.

Kloess represented Easterling in the municipal court charge, and, as permitted under Alabama law,

entered a plea of guilty in absentia for him. The indictment alleges that Kloess executed an affidavit giving

the Municipal Court notice that "Craig Wallace" intended to enter a guilty plea through Kloess, his attorney,

and that Kloess wrote a letter to the municipal court judge informing the court of "Wallace's" intent to plead

guilty in absentia. The indictment further alleges that Kloess knew that the true identity of "Craig Wallace"

was Gene Easterling, and that Kloess knowingly misled the court with respect to "Wallace's" true identity in

order to conceal Easterling's probation violation. The indictment charges that this conduct violates 18 U.S.C.
 1

Kloess was also charged with conspiracy to violate Section 1512(b)(3) in violation of 18 U.S.C. §

371, aiding and abetting Easterling in the violation of Section 1512(b)(3), and conspiring to aid and abet

Easterling in violation of Section 371. We note that Section 1512 is entitled "Witness Tampering" and

was enacted by Congress as a comprehensive witness protection measure, but is a part of Chapter 73

which is entitled "Obstruction of Justice." 18 U.S.C. §§ 1501-1515 (1982). 

§ 1512(b)(3) which provides:

(b) whoever knowingly ... engages in misleading conduct toward another person with intent to

...

(3) hinder, delay, or prevent the communication to a ... 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.1

...

Kloess moved to dismiss the indictment, contending that its allegations were insufficient to charge

a violation of Section 1512(b)(3). He points to Section 1515(c) of the statute which provides that:

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.

Kloess contends that the government must plead and prove that his conduct was not protected by this "safe

harbor" in the statute. Since the indictment does not allege that the charged conduct did not constitute bona

fide legal representation, he argues that it fails to state an offense under Section 1512(b)(3).

The Magistrate Judge who first considered Kloess's motion to dismiss concluded that the indictment

is not defective because, under federal law, it need only charge the essential elements of Section 1512(b)(3)

and Section 1515(c) is not one of those elements. According to the magistrate, Section 1515(c) provides only

a potential affirmative defense to charges under Section 1512(b)(3).

The district court disagreed. The district court concluded that when Congress amended the statute

to include Section 1515(c), it intended to put the burden on the government to prove, as an element of the

offense stated in Section 1512, that Kloess was not providing lawful, bona fide, legal representation services.

The court, therefore, granted the motion and dismissed the case.

 The government brings this appeal, arguing that Section 1515(c) is not an essential element of the

offense which the government must negate in its pleading and proof, but is rather an affirmative defense

which must be raised and proved by the defendant. This appears to be an issue of first impression in this or

any other circuit court. It is also an issue of law which we decide de novo. See United States v. De Castro,
 2

We agree with the district court that the magistrate's reliance on United States v. Steele, 147 F.3d

1316 (11th Cir.1998) (en banc), is misplaced. In that case, the relevant statute clearly spelled out that

negation of the "safe harbor" provision for pharmacists was not an element of the crime of unlawfully

dispensing controlled substances. 147 F.3d at 1318. 

 3For example, Section 1512(d) specifically states: "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." 

113 F.3d 176, 178 (11th Cir.1997).2

II.

 Section 1515(c) excepts from culpability conduct which might otherwise be thought to violate

Section 1512(b)(3). To determine whether a statutorily created exception to a criminal offense is an element

of the crime, we undertake a three-part inquiry. United States v. McArthur, 108 F.3d 1350, 1353 (11th

Cir.1997). First, we look at the language and structure of the statute itself to determine whether the exception

is part of the general statutory offense. Second, we look at the legislative history of the statute to determine

whether Congress intended to make the exception an element of the crime. Finally, we look to see whether

the government is well-situated to adduce evidence tending to prove the applicability of the exception. Id.

If the answers to these three questions are "yes," then the exception is an element of the offense.

A. The Statutory Offense

 "In construing a statute we must begin, and often should end as well, with the language of the statute

itself." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir.1997). The Supreme Court has

instructed us time and again that, "courts must presume that a legislature says in a statute what it means and

means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct.

1146, 117 L.Ed.2d 391 (1992).

Unfortunately, Section 1515(c) does not specify whether the exception it creates is an element of the

offense or an affirmative defense. Kloess suggests that this fact alone indicates that it must be considered an

element of the crime since "the language commonly used by Congress to create affirmative defenses" is

"glaringly absent from § 1515(c)."3

 Congress, however, routinely creates exceptions to criminal liability for

various offenses. Most of these exceptions do not contain language indicating that they are affirmative

defenses rather than elements of the offenses. Nevertheless, the courts generally interpret them as affirmative

defenses. See e.g., McArthur, 108 F.3d at 1353 (no posting of notice exception to crime of possession of

firearm in federal facility); United States v. Jackson, 57 F.3d 1012, 1016 (11th Cir.1995) (prior felony
 4

We are not persuaded by the district court's conclusion that Section 1515(c) defines an element of the

crime because Section 1515 is entitled "Definitions for certain provisions; general provision." (emphasis

supplied) Even a cursory reading of the section reveals that subsection (c) is the general, not a

definitional, provision. Nor can Section 1515(c) reasonably be said to be part of the enacting clause of

the statute. The section was not part of the original statute, but was passed along with a series of technical

amendments to the federal criminal code under the Criminal Law and Procedure Technical Amendments

Act of 1986. 

expunged exception to felon in possession of firearm); United States v. Laroche, 723 F.2d 1541 (11th

Cir.1984) (antique firearm exception to felon in possession); United States v. Mayo, 705 F.2d 62, 73-76 (2d

Cir.1983) (entrapment exception); United States v. McCann, 465 F.2d 147, 162 (5th Cir.1972) (consent

exception to illegal wiretap); United States v. Ramzy, 446 F.2d 1184 (5th Cir.1971) (physician exception to

illegal dispensing of drugs). We do not find the absence of such language dispositive.

 The Supreme Court has made clear that "an indictment ... founded on a general provision defining

the elements of an offense ... need not negative the matter of an exception made by a proviso or other distinct

clause, whether in the same section or elsewhere...." McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct.

132, 67 L.Ed. 301 (1922). Section 1512(b)(3) is a broad prohibition against anyone who knowingly and

willfully engages in misleading conduct with the intent to hinder, delay or prevent the communication to a

law enforcement officer or judge of the United States of information relating to the commission of a federal

offense or violation of probation. Section 1515(c), on the other hand, is a narrow exception to this general

proscription. It excepts bona fide legal representation from all the ways one could be culpable under the

statute. It appears in a distinct clause, in a different section of the statute. This suggests that it is not an

element of the crime of obstruction of justice. See McCann, 465 F.2d at 162 (indictment alleging unlawful

interception of wire communications need not charge statutory exceptions found in distinct clause of statute).

Furthermore, Section 1512(b)(3) "defines a perfectly cogent offense" without reference to the

exception found in 1515(c). See McArthur, 108 F.3d at 1354. The description of the offense proscribes

certain conduct and requires that the defendant acted "knowingly and willfully." Consequently, we can omit

the exception provided by Section 1515(c) from the statute without doing violence to the definition of the

offense. Under these circumstances, the exception is more likely to be a defense to the crime rather than an

element of it. United States v. Outler, 659 F.2d 1306, 1309-10 (5th Cir. Unit B. Oct.1981) (rev'd on other

grounds).4

Finally, if Section 1515(c) constitutes an element of the obstruction of justice crimes contained in

Chapter 73, the government would be obligated to negate that the defendant was providing bona fide legal
services whenever it charges a defendant with assaulting a process server under 18 U.S.C. § 1501, threatening

a juror by force under 18 U.S.C. § 1512(b)(3), injuring a juror in retaliation for a verdict under 18 U.S.C. §

1503, stealing court records under 18 U.S.C. § 1506, and witness tampering by murder under 18 U.S.C. §

1512(a). We do not think that Congress intended this result.

Thus, our review of the structure of the statute leads us to conclude that Section 1515(c) is not an

element of the crime stated in 18 U.S.C. § 1512(b)(3).

B. The Legislative History

The portion of the House report on the Criminal Law and Procedure Technical Amendments Act of

1986 does not discuss Section 1515(c) at all. See H.R. Rep. No. 797, 99th Cong., 2nd Sess., reprinted in 1986

U.S.C.C.A.N. 6138-57. The U.S.Code Congressional & Administrative News did not reprint the Senate

Report on the Act, which is S. Rep. No. 99-278.

The district court relied upon the floor comments of a single legislator from the Congressional

Record. Such reliance, however, has been eschewed by the Supreme Court. Garcia v. United States, 469

U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984). We find the legislative history inconclusive.

C. Ease of Proof

The final McArthur factor to be considered is whether the government or the defendant is "better

equipped to prove facts that would allow them to take advantage of a statutory exception." 108 F.3d at 1355.

Where the defendant is in the better position to adduce the relevant evidence, we ordinarily view the

exception as an affirmative defense. Id.

Whether a defendant was providing lawful, bona fide legal representation in connection with or

anticipation of an official proceeding is an issue which the defendant will usually be in the better position to

raise in response to an indictment alleging a violation of Section 1512(b)(3). For example, the defendant will

be in a better position to establish that he was a practicing attorney at the time of the offense. Additionally,

he will be in the better position to establish that he was retained to provide legal representation in connection

with the charged conduct. Having done so, he will have affirmatively raised the issue of the applicability of

Section 1515(c).

We conclude from our analysis of the McArthur factors that Section 1515(c) is properly characterized

as an affirmative defense to rather than an element of the crime defined in Section 1512(b)(3). See United

States v. Kellington, 217 F.3d 1084, 1098 (9th Cir.2000) (characterizing Section 1515(c) as "a complete
 5

Since this is an appeal of the grant of a motion to dismiss the indictment for failure to state a

violation of the charged offense, only the burden of pleading is at issue in the case. The parties, however,

spent as much time arguing about who has the burden of proof as they did who had the burden of

pleading. The district court also framed the issue as "whether Section 1515(c) is an affirmative defense

which the defendant must prove." Of course, since the district court ultimately held that Section 1515(c)

constitutes an element of the offense under Section 1512(b)(3), it held that the government must not only

plead it but prove it. Our conclusion that Section 1515(c) is an affirmative defense resolves the burden of

pleading, but leaves the issue of the burden of proof on the defense unresolved. While the issue is not

technically raised by the motion to dismiss, the parties argued it and the court decided it. Therefore, we

shall consider it since to do otherwise would invite further legal error. 

 6"All ... circumstances of justification, excuse or alleviation" rested on the defendant. 4 W.

Blackstone, Commentaries 201. 

defense to obstruction of justice"). This conclusion, however, only answers the question of who has the

burden of pleading it in a case charged under Section 1512(b)(3). The answer is that the government need

not plead that the exception does not apply. Rather the defendant must affirmatively raise the issue.

The parties, however, have briefed and argued this appeal as though resolution of the burden of

pleading also resolves the issue of the burden of proof.5

 We do not agree. The proper resolution of the

burden of proof requires an additional inquiry into the sort of defense which is provided by Section 1515(c).

III.

A defendant need not offer any defense. It has long been established that:

The burden of proof is never upon the accused to establish his innocence, or to disprove the facts

necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning

to the end of the trial, and applies to every element necessary to constitute the crime.

Davis v. United States, 160 U.S. 469, 487, 16 S.Ct. 353, 40 L.Ed. 499 (1895).

A defendant may, however, choose to introduce evidence to show "affirmatively that he was not

criminally responsible for his acts." Id. at 478, 16 S.Ct. 353. At common law, the defendant bore the burden

of pleading and proving all such "affirmative" defenses, a practice which does not offend the Constitution.

Patterson v. New York, 432 U.S. 197, 202, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).6

 State statutes which

place this burden on the defendant are also constitutional. Id. ("If the State ... chooses to recognize a factor

that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has

been established with reasonably certainty").

There has been a twentieth-century trend toward requiring the government to bear the burden of

persuasion on certain affirmative defenses. See Patterson, 432 U.S. at 207 n. 10, 97 S.Ct. 2319. An

examination of the cases reveals, however, "a quite divided jurisprudence, without any clear default rule as

to how affirmative defenses generally should be treated." United States v. Dodd, 225 F.3d 340, 348 (3d
 7

The government's suggestion that Deleveaux supports its position that the defendant bears the burden

of persuasion on a Section 1515(c) defense is mistaken. First, Deleveaux does not say that all statutorily

created defenses are affirmative defenses on which the defendant bears the burden of persuasion. On the

contrary, it quotes from United States v. Alvarez, 755 F.2d 830, 842 n. 12 (11th Cir.1985), in which we

explained that for affirmative defenses, "[t]he ultimate 'burden of persuasion,' ... may fall on either the

government or the defendant, as determined by statute or court decision". Second, Deleveaux specifically

recognizes that any defense, be it affirmative or not, which negates an element of the crime charged, must

be negated by the government beyond a reasonable doubt. 205 F.3d at 1298. 

Cir.2000).

 There is agreement, however, on one sort of affirmative defense. Any defense which tends to negate

an element of the crime charged, sufficiently raised by the defendant, must be disproved by the government.

Patterson, 432 U.S. at 206-07, 97 S.Ct. 2319; Deleveaux, 205 F.3d at 1298.7

 "The Due Process Clause

requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the [defense]

makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the

[defense] makes the difference between guilt and innocence." Patterson, 432 U.S. at 226, 97 S.Ct. 2319

(Powell, J., dissenting). Therefore, if the defendant introduces evidence that has the effect of negating any

element of the offense, the government must disprove that defense beyond a reasonable doubt. Patterson,

432 U.S. at 210, 97 S.Ct. 2319; Deleveaux, 205 F.3d at 1298.

Section 1515(c) provides such an affirmative defense. To violate Section 1512(b)(3), the defendant

must knowingly act with the specific intent to hinder or delay the communication to the court of the

commission of a federal offense or probation violation. United States v. Veal, 153 F.3d 1233, 1248 & n. 20

(11th Cir.1998). See also Kellington, 217 F.3d at 1098; United States v. Davis, 183 F.3d 231, 253 (3d

Cir.1999). In order to convict a defendant under Section 1512(b)(3), the government must prove that the

defendant acted with an improper purpose. Veal, 153 F.3d at 1250 (statute punishes a "defendant's intention

to thwart an inquiry into [a] crime"). Section 1515(c) provides a complete defense to the statute because one

who is performing bona fide legal representation does not have an improper purpose. His purpose—to

zealously represent his client—is fully protected by the law. Section 1515(c), therefore, constitutes an

affirmative defense which negates an element of the offense stated in Section 1512(b)(3).

The Due Process Clause "protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship,

397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (emphasis added). No defendant can be convicted

under Section 1512(b)(3) unless the government proves every element of the offense beyond a reasonable
 8

Where, as in this case, the government's indictment alleges all the necessary facts to invoke the

applicability of Section 1515(c), i.e., that the defendant is a validly licensed attorney who was retained to

provide legal representation and that the charged conduct consists of that representation, the defendant's

burden of production is met by the indictment. See Patterson, 432 U.S. at 231 n. 17, 97 S.Ct. 2319

(Powell, J., dissenting) (even if burden of production on defendant, prosecution's case may contain

sufficient evidence supporting defendant's position to generate jury issue). 

doubt. Since the proper invocation of Section 1515(c) raises an inference of lawful purpose which negates

the mens rea element of Section 1512(b)(3), the defendant is entitled to an acquittal if the government does

not overcome the inference. Id.

 A defendant-lawyer seeking the safe harbor of Section 1515(c) must affirmatively show that he is

entitled to its protection. See Jackson, 57 F.3d at 1016 ("[w]here affirmative defenses are created through

statutory exceptions, the ultimate burden of persuasion remains with the prosecution, but the defendant has

the burden of going forward with sufficient evidence to raise the exception as an issue"). This is a minimal

burden. Evidence tending to show that the defendant is a licensed attorney who was validly retained to

perform the legal representation which constitutes the charged conduct is sufficient to raise an inference of

innocent purpose.8

 Any requirement to do more would unconstitutionally shift the burden to the defendant

to prove his innocence by negating an element of the statute—the required mens rea. This the Constitution

forbids. Mullaney v. Wilbur, 421 U.S. 684, 702, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ("although intent is

typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the Court has

long recognized, justify shifting the burden to him"); Davis, 160 U.S. at 487, 16 S.Ct. 353 ("the burden of

proof ... is never upon the accused to establish his innocence, or to disprove the facts necessary to establish

the crime for which he is indicted"); Deleveaux, 205 F.3d at 1298.

 Once the Section 1515(c) defense has been fairly raised, the government must undertake to prove

its case, including the requisite improper purpose, by adducing evidence that the charged conduct did not

constitute lawful, bona fide representation. See United States v. Kelly, 888 F.2d 732, 744 (11th Cir.1989)

(testimony regarding ethical obligations very relevant to attorney-defendant's intent and state of mind);

Kellington, 217 F.3d at 1098 ("It is well settled that in the prosecution of a lawyer for conduct stemming from

his or her representation of a client, expert testimony is relevant to establish the lawyer's intent and state of

mind"); accord United States v. Machi, 811 F.2d 991, 999-1000 (7th Cir.1987); United States v. Klauber,

611 F.2d 512, 520 (4th Cir.1979); United States v. Rabbitt, 583 F.2d 1014, 1028-29 (8th Cir.1978).

The defendant is entitled to rebut the government's proof. Kelly, 888 F.2d at 744; Kellington, 217
F.3d at 1098; United States v. Cavin, 39 F.3d 1299, 1309 (5th Cir.1994) ("[A] lawyer accused of

participating in his client's fraud is entitled to present evidence of his professional, including ethical,

responsibilities, and the manner in which they influenced him. Exclusion of such evidence prevents the

lawyer from effectively presenting his defense"). As we noted in Kelly, "it would be incongruous to admit

such evidence when tendered in support of guilt, but not when offered for exculpatory purposes." 888 F.2d

at 744.

 Having fairly raised the Section 1515(c) defense to culpability under Section 1512(b)(3), the

defendant is entitled to an acquittal unless the jury finds that the government proved beyond a reasonable

doubt that the defendant's conduct did not constitute lawful, bona fide legal representation.

IV.

In view of the foregoing, we hold that Section 1515(c) constitutes an affirmative defense to the crime

stated in 18 U.S.C. § 1512(b)(3). Although the burden of raising Section 1515(c) as a defense is on the

defendant, the burden of proof as to its non-applicability is always on the government. As the district court

dismissed this indictment for its failure to allege the non-applicability of Section 1515(c) to the charged

conduct, we reverse the judgment and remand for further proceedings.

REVERSED AND REMANDED.