Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities
Released: 2014-04-17T00:00:00

Introduction

Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. It is a federal crime. In fact, federal obstruction of justice laws are legion; too many for even passing reference to all of them in a single report. This is a brief description of some of the more prominent.

General Obstruction Prohibitions

The general federal obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending federal court proceedings), 1505 (obstruction of pending congressional or federal administrative proceedings), 371 (conspiracy), and contempt. In addition to these, there are a host of other statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit.

Witness Tampering (18 U.S.C. 1512)

Section 1512 applies to the obstruction of federal proceedings—judicial, congressional, or executive. It consists of four somewhat overlapping crimes: use of force or the threat of the use of force to prevent the production of evidence (18 U.S.C. 1512(a)); use of deception or corruption or intimidation to prevent the production of evidence (18 U.S.C. 1512(b)); destruction or concealment of evidence or attempts to do so (18 U.S.C. 1512(c)); and witness harassment to prevent the production of evidence (18 U.S.C. 1512(d)). The offenses have similar, but not identical, objectives and distinctive elements of knowledge and intent. Section 1512 also contains freestanding provisions that apply to one or more of the offenses within the section. These deal with affirmative defenses (18 U.S.C. 1512(e)); jurisdictional issues (18 U.S.C. 1512(f),(g),(h)); venue (18 U.S.C. 1512(i)); sentencing (18 U.S.C. 1512(j)); and conspiracy (18 U.S.C. 1512(k)).

Obstruction by Violence (18 U.S.C. 1512(a))

Subsection 1512(a) has slightly different elements depending upon whether the offense involves a killing or attempted killing—18 U.S.C. 1512(a)(1)—or some other use of physical force or a threat—18 U.S.C. 1512(a)(2). In essence, they condemn the use of violence to prevent a witness from testifying, producing evidence for an investigation, or bringing a crime to the attention of authorities, and they set their penalties according to whether the obstructive violence used is a homicide, an assault, or a threat. In more exact terms, they declare:

Unless countermanded by subsection 1512(j), subsection 1512(a)(3) provides the sanctions for both subsection 1512(a)(1) and (a)(2). Homicide is punished as provided in 18 U.S.C. 1111 and 1112, that is, murder in the first degree is punishable by death or imprisonment for life; murder in the second degree is punishable by imprisonment for any term of years or for life; voluntary manslaughter is punishable by imprisonment for not more than 15 years and involuntary manslaughter by imprisonment for not more than 8 years. Attempted murder, assault, and attempted assault are punishable by imprisonment for not more than 30 years; and a threat to assault punishable by imprisonment for not more than 20 years.

Subsection 1512(j) provides that the maximum term of imprisonment for subsection 1512(a) offenses may be increased to match the maximum term of any offense involved in an obstructed criminal trial.

To secure a conviction under the communication to a law enforcement officer offense, "the Government must prove (1) a killing or attempted killing, (2) committed with a particular intent, namely, an intent (a) to 'prevent' a 'communication' (b) about the 'the commission or possible commission of a federal offense' (c) to a federal 'law enforcement officer or judge.'" Attempt requires proof that the defendant intended to commit the killing and that he took a substantial step in furtherance of that intent.

There are two statutory defenses to charges under §1512. One covers legitimate legal advice and related services, 18 U.S.C. 1515(c), and is intended for use in connection with the corrupt persuasion offenses proscribed elsewhere in §1512 rather than the violence offenses of subsection 1512(a). The other statutory defense is found in subsection 1512(e) and creates an affirmative defense when an individual engages only in conduct that is lawful in order to induce another to testify truthfully. The defense would appear to be of limited use in the face of a charge of the obstructing use or threat of physical force in violation of subsection 1512(a).

Subsections 1512(f) and 1512(g) seek to foreclose a cramped construction of the various offenses proscribed in §1512. Subsection 1512(f) declares that the evidence that is the object of the obstruction need not be admissible and that the obstructed proceedings need not be either pending or imminent. Whether the defendant's misconduct must be shown to have been taken in anticipation of such proceedings is a more difficult question.

The Supreme Court rejected the contention that language like that found in subsection 1512(f) (making §1512 applicable to obstructions committed before any official proceedings were convened) absolved the government of having to prove that the obstruction was committed with an eye to possible official proceedings. That case, the Arthur Andersen case, however, involved the construction of subsection 1512(b) which requires that the defendant be shown to have "knowingly" engaged in the obstructing conduct. Subsection 1512(a) has no such explicit "knowing" element. Yet, the government must still show that the offender's violent act was committed with the intent to prevent testimony in a federal official proceeding.

By virtue of subsection 1512(g), "where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer."

As a consequence of subsection 1512(h), murder, attempted murder, or the use or threat of physical force—committed overseas to prevent the appearance or testimony of a witness or the production of evidence in federal proceedings in this country or to prevent a witness from informing authorities of the commission of a federal offense or a federal parole, probation, supervised release violation—is a federal crime outlawed in subsection 1512(a) that may be prosecuted in this country.

As a general rule, the courts will assume that Congress intends a statute to apply only within the United States and to be applied consistent with the principles of international law—unless a contrary intent is obvious. Subsection 1512(h) supplies the obvious contrary intent. Since a contrary intent may be shown from the nature of the offense, the result would likely be the same in the absence of subsection 1512(h). In the case of an overseas obstruction of federal proceedings, the courts could be expected to discern a congressional intent to confer extraterritorial jurisdiction and find such an application compatible with the principles of international law. The existence of extraterritorial jurisdiction is one thing; the exercise of such jurisdiction is another. Federal investigation and prosecution of any crime committed overseas generally presents a wide range of diplomatic, legal, and practical challenges.

Subsection 1512(i) states that violations of §1512 or §1503 may be prosecuted in any district where the obstruction occurs or where the obstructed proceeding occurs or is to occur. In the case of obstructions committed in this country, the Constitution may limit the trial in the district of the obstructed proceedings to instances when a conduct element of the obstruction has occurred there.

Auxiliary Offenses and Liability

Subsection 1512(k) makes conspiracy to violate §1512 a separate offense subject to the same penalties as the underlying offense. The section serves as an alternative to a prosecution under 18 U.S.C. 371 that outlaws conspiracy to violate any federal criminal statute. Section 371 is punishable by imprisonment for not more than five years and conviction requires the government to prove the commission of an overt act in furtherance of the scheme by one of the conspirators. Subsection 1512(k) has no specific overt act element, and the courts have generally declined to imply one under such circumstances. Regardless of which section is invoked, conspirators are criminally liable as a general rule under the Pinkerton doctrine for any crime committed in the foreseeable furtherance of the conspiracy.

Accomplices to a violation of subsection 1512(a) may incur criminal liability by operation of 18 U.S.C. 2, 3, 4, or 373 as well. Section 2 treats accomplices before the fact as principals. That is, it declares that those who command, procure or aid and abet in the commission of a federal crime by another, are to be sentenced as if they committed the offense themselves. As a general rule, "[i]n order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something he wishes to bring about, [and] that he seek by his action to make it succeed." It is also necessary to prove that someone else committed the underlying offense.

Section 3 outlaws acting as an accessory after the fact, which occurs when "one knowing that an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder his or her apprehension, trial, or punishment." Prosecution requires the commission of an underlying federal crime by someone else. An offender cannot be both a principal and an accessory after the fact to the same offense. Offenders face sentences set at one half of the sentence attached to the underlying offense, or if the underlying offense is punishable by life imprisonment or death, by imprisonment for not more than 15 years (and a fine of not more than $250,000).

Although at first glance §4's misprision prohibition may seem to be a failure-to-report offense, misprision of a felony under the section is in essence a concealment offense. "The elements of misprision of a felony under 18 U.S.C. 4 are (1) the principal committed and completed the felony alleged; (2) the defendant had full knowledge of that fact; (3) the defendant failed to notify the authorities; and (4) defendant took steps to conceal the crime." The offense is punishable by imprisonment for not more than three years and/or a fine of not more than $250,000.

Solicitation to commit an offense under subsection 1512(a), or any other crime of violence, is prohibited in 18 U.S.C. 373. "To establish solicitation under §373, the Government must demonstrate that the defendant (1) had the intent for another to commit a crime of violence and (2) solicited, commanded, induced or otherwise endeavored to persuade such other person to commit the crime of violence under circumstances that strongly corroborate evidence of that intent." Section 373 provides an affirmative statutory defense for one who prevents the commission of the solicited offense. Offenders face penalties set at one half of the sanctions for the underlying offense, but imprisonment for not more than 20 years, if the solicited crime of violence is punishable by death or imprisonment for life.

A subsection 1512(a) violation opens up the prospect of prosecution for other crimes for which a violation of subsection 1512(a) may serve as an element or otherwise related. The racketeering statutes (RICO) outlaw acquiring or conducting the affairs of an interstate enterprise through a pattern of "racketeering activity." The commission of any of a series of state and federal crimes (predicate offenses) constitutes a racketeering activity. Section 1512 offenses are RICO predicate offenses. RICO violations are punishable by imprisonment for not more than 20 years (or imprisonment for life if the predicate offense carries such a penalty), a fine of not more than $250,000 and the confiscation of related property.

The money laundering provisions, among other things, prohibit financial transactions involving the proceeds of a "specified unlawful activity," that are intended to launder the proceeds or to promote further "specified unlawful activity." Any RICO predicate offense is by virtue of that fact a specified unlawful activity, that is, a money laundering predicate offense. Money laundering is punishable by imprisonment for not more than 20 years, a fine ranging from $250,000 to $500,000 depending upon the nature of the offenses, and the confiscation of related property.

A subsection 1512(a) offense is by definition a crime of violence. Commission of a crime of violence is an element of, or a sentence enhancement factor for, several other federal crimes, for example:

18 U.S.C. 25 (use of a child to commit a crime of violence), 18 U.S.C. 521 (criminal street gang), 18 U.S.C. 924(c)(carrying a firearm during and in relation to a crime of violence), 18 U.S.C. 929 (carrying a firearm with restricted ammunition during and in relation to a crime of violence), 18 U.S.C. 1028 (identity fraud in connection with a crime of violence). 18 U.S.C. 1959 (violence in aid of a RICO enterprise).

Obstruction by Intimidation, Threats, Persuasion, or Deception (18 U.S.C. 1512(b)

The second group of offenses within §1512 outlaws obstruction of federal congressional, judicial, or administrative activities by intimidation, threat, corrupt persuasion, or deception, 18 U.S.C. 1512(b). Parsed to its elements, subsection 1512(b) provides that:

I. Whoever

II. knowingly

A. uses intimidation

B. threatens, or

C. corruptly persuades another person, or

D. attempts to do so, or

E. 1. engages in misleading conduct

2. toward another person,

III. with intent to

A. 1. a. influence,

b. delay, or

c. prevent

2. the testimony of any person

3. in an official proceeding, or

B. cause or induce any person to

1. a. i. withhold testimony, or

ii. withhold a

(I) record,

(II) document, or

(III) other object,

b. from an official proceeding, or

2. a. i. alter,

ii. destroy,

iii. mutilate, or

iv. conceal

b. an object

c. with intent to impair

d. the object's

i. integrity or

ii. availability for use

e. in an official proceeding, or

3. a. evade

b. legal process

c. summoning that person

i. to appear as a witness, or

ii. to produce a

(I) record,

(II) document, or

(III) other object,

iii. in an official proceeding, i.e., a

(I) federal court proceeding,

(II) federal grand jury proceeding,

(III) Congressional proceeding,

(IV) federal agency proceeding, or

(V) proceeding involving the insurance business; or

4. a. be absent

b. from an official proceeding,

c. to which such person has been summoned by legal process; or

C. 1. a. hinder,

b. delay, or

c. prevent

2. the communication to a

a. federal judge or

b. federal law enforcement officer

3. of information relating to the

a. commission or

b. possible commission of a

4. a. federal offense or

b. [a] violation of conditions of

i. probation,

ii. supervisor release,

iii. parole, or

iv. release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.

In more general terms, subsection 1512(b) bans (1) knowingly, (2) using one of the prohibited forms of persuasion (intimidation, threat, misleading or corrupt persuasion), (3)(a) with the intent to prevent a witness's testimony or physical evidence from being truthfully presented at official federal proceedings or (b) with the intent to prevent a witness from cooperating with authorities in a matter relating to a federal offense.

It also bans any attempt to so intimidate, threaten, or corruptly persuade . The term "corruptly" in the phrase "corruptly persuades" as it appears in subsection 1512(b) has been found to refer to the manner of persuasion, the motive for persuasion, and the manner of obstruction. Prosecution for obstructing official proceedings under subsection 1512(b)(2) will require proof that the defendant intended to obstruct a particular proceeding. Prosecution for obstructing the flow of information to law enforcement officials under subsection 1512(b)(3), on the other hand, apparently requires no such nexus. A subsection 1512(b)(3) investigation obstruction offense prosecution, however, does require proof that the defendant believed it reasonably likely that the witness, absent tampering, might communicate with federal authorities. The defendant's belief that a witness is reasonably likely to confer with federal authorities can be inferred from the nature of the offense and "additional appropriate evidence."

The attributes common to §1512 as a whole, apply to subsection 1512(b); some of which may fit more comfortably in a subsection 1512(b) corrupt persuasion setting than they do in a 1512(a) violence prosecution. The affirmative defenses in subsections 1512(e) and 1515(d) are prime examples. Subsection 1512(e) removes by way of an affirmative defense good faith encouragements of a witness to speak or testify truthfully, although it does not excuse urging a witness to present fabrications as the truth. Subsection 1515(d) makes it clear that bona fide legal advice and related services cannot be used to provide the basis for subsection 1512(b) corrupt persuasion prosecution. Conversely, charges of soliciting a crime of violence—18 U.S.C. 373—or of using a child to commit a crime of violence—18 U.S.C. 25—are more likely to be prosecutorial companions of a charge under subsection 1512(a) than under subsection 1512(b).

On the other hand, the extraterritorial and venue statements of subsections 1512(h) and 1512(i) are as readily applicable to subsection 1512(b) persuasion prosecutions as they are to a subsection 1512(a) violent obstruction case. The same can be said of aiding and abetting, accessories after the fact, misprision, and predicate offense status under RICO or the money laundering statutes. And, it is likewise a separate offense to conspire to violate subsection 1512(b) under either §371 or subsection 1512(k).

Obstruction by Destruction of Evidence (18 U.S.C. 1512(c))

The obstruction by destruction of evidence offense found in subsection 1512(c) is the creation of the Sarbanes-Oxley Act, and proscribes obstruction of federal administrative, judicial, or congressional proceedings by destruction of evidence.

More specifically, subsection 1512(c) provides that:

I. Whoever

II. corruptly

III. A.1.alters,

2. destroys,

3. mutilates, or

4. conceals

B. 1. a record,

2. document, or

3. other object, or

C. attempts to do so,

D. with the intent to impair the object's

1. integrity, or

2. availability for use

E. in an official proceeding, or

IV. otherwise

A. 1. obstructs,

2. influences, or

3. impedes

B. an official proceeding, or

C. attempts to do so

shall be fined under this title or imprisoned not more than 20 years, or both.

Section 1512(c) covers only obstructions committed or attempted with "corrupt" intent. Here, the courts have said that "corruptly" means "acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede, or obstruct the proceeding"; that it means "acting with consciousness of wrongdoing." It does not mean that the obstruction must be done with wicked or evil intent.

The courts appear divided over whether an FBI investigation may constitute "official proceeding"; a fact that may flow from their ambivalence over whether the evidence the defendant sought to deny need be material. Some have declared that there must be a nexus between the defendant's destructive conduct and the proceedings he sought to obstruct: "the defendant's conduct must 'have a relationship in time, causation, or logic with the [official] ... proceedings'; in other words, 'the endeavor must have the natural and probable effect of interfering with the due administration of justice.'" Others have said that there is no materiality requirement (i.e., that the obstruction is not confined to evidence that has the natural tendency to influence the proceeding).

As is generally true of attempts to commit a federal offense, attempt to violate subsection 1512(c) requires an intent to violate the subsection and a substantial step toward the accomplishment of that goal. Like subsection 1512(a) and 1512(b) offenses, subsection 1512(c) offenses are RICO and money laundering predicate offenses, and may provide the foundation for criminal liability as a principal, accessory after the fact, conspirator, or one guilty of misprision. If the federal judicial, administrative or congressional proceedings are obstructed, prosecution may be had in the United States even if the destruction occurs overseas, the proceedings are yet pending, or the offender is unaware of their federal character.

Obstruction by Harassment (18 U.S.C. 1512(d))

The obstruction by harassment prohibition in subsection 1512(d) existed as subsection 1512(c) until redesignated by Sarbanes-Oxley in 2002. Subsection 1512(d) declares:

I. Whoever,

II. intentionally,

III. harasses another person, and thereby

IV. A. hinders,

B. delays,

C. prevents, or

D. dissuades,

V. any person from

A. 1. attending or

2. testifying in

3. an official proceeding, or

B. reporting

1. a. to a law enforcement officer, or

b. judge

c. of the United States,

2. a. the commission, or

b. possible commission, of

3. a. a federal offense, or

b. a violation of the conditions of

i. probation,

ii. supervised release,

iii. parole, or

iv. release pending judicial proceedings, or

C. 1. arresting, or

2. seeking to arrest

3. another person

4. in connection with a federal offense, or

D. causing

1. a. a criminal prosecution, or

b. a parole revocation proceeding, or

c. a probation revocation proceeding

2. a. to be sought, or

b. instituted, or

3. assisting in such prosecution or proceeding, or

VI. attempts to do so

shall be fined under this title or imprisoned not more than 3 years, or both.

The fine for crimes punishable by imprisonment for not more than 3 years is not more than $250,000 (not more than $500,000 for organizations). The subsection does not apply to obstructing a private individual who seeks information of criminal activity in order to report it to federal authorities.

Subsection 1512(d) harassment offenses are RICO and money laundering predicate offenses. The provisions of law relating to principals, accessories after the fact, misprision, and conspiracy apply with equal force to offenses under subsection 1512(d), as do the provisions elsewhere in §1512 relating to extraterritorial application, and abolition of the need to show pendency or knowledge of the federal character of the obstructed proceedings or investigation.

Obstructing Federal Courts (18 U.S.C. 1503)

The Omnibus Provision

Unlike §1512, §1503 does not to apply to the obstruction of congressional or administrative proceedings. Nor, in most circuits at least, does it apply to obstruction of judicial proceedings unless the impeded proceedings are pending. Nevertheless, it condemns obstructing pending judicial proceedings by means of any of four methods. Three explicitly address interfering with federal jurors or court officials; the fourth, the so-called omnibus provision, speaks to interfering with the "due administration of justice." The omnibus provision states:

I. Whoever

II. A. corruptly or

B. by threats or force, or

C. by any threatening letter or communication,

III. A. influences,

B. obstructs, or

C. impedes, or

D. endeavors to

1. influence,

2. obstruct, or

3. impede,

IV. the due administration of justice,

shall be punished as provided in subsection (b).

Subsection (b) calls for murder and manslaughter to be punished as those crimes are punished when committed in violation of §§1111 and 1112; attempted murder, attempted manslaughter, or any violation involving a juror called to hear a case relating to a class A or B felony is punishable by imprisonment for not more than 20 years; and all other offenses by imprisonment for not more than 10 years.

The courts often observe that to convict under this omnibus or "catchall" provision the government must prove beyond a reasonable doubt: "(1) that there was a pending judicial proceeding, (2) that the defendant knew this proceeding was pending, and (3) that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice." Some also assert that the obstruction must also be material to the matters before the judicial proceeding.

As to the first two elements, the Supreme Court has maintained for over a century that "a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court." There is no requirement 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).

In order to "corruptly endeavor" to obstruct the due administration of justice, "[t]he action taken by the accused must be with an intent to influence judicial or grand jury proceedings.... Some courts have phrased this showing as a nexus requirement—that the act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice." The Supreme Court's observations, notwithstanding, the courts are somewhat divided over whether the obstructed judicial proceedings must actually be pending.

The courts may be at odds as well over whether the due administration of justice in §1503 may be obstructed by corrupting a witness before a federal judicial proceeding or any other obstruction covered by 18 U.S.C. 1512 or 1513. The Second Circuit held in 1991 that when Congress enacted the more specific witness tampering and witness retaliation provisions of §§512 and 1513 it intended to remove those crimes from the omnibus clause's inventory of proscriptions. The other circuits, to the extent they have later addressed the issue, disagree. Notwithstanding opportunities to reconsider, the Second Circuit has apparently found it unnecessary to do so thus far.

The specific kinds of misconduct which will provide the basis for a prosecution under the omnibus clause of §1503 vary considerably. Subsection 1515(c), however, makes it clear that bona fide legal advice will not provide the basis for a prosecution under the omnibus clause of §1503 nor under any other obstruction of justice prohibition found in the same chapter for that matter.

Interfering with Jurors or Judicial Officials (18 U.S.C. 1503)

Bribery and other forms of jury corruption fall within the proscriptions of the omnibus clause of §1503, but are more explicitly condemned in the remainder of the section. On its face, the section covers both tampering with (and retaliation against) federal grand jurors, petite jurors, magistrates, and other judicial officials. The conduct it outlaws may take the form of threats, force, threatening letters or other communication, corruption ( e.g ., bribery), or in retaliation, personal injury or property damage. Yet the offense is only complete if the misconduct is perpetrated in an endeavor to influence, intimidate or impede a juror or judicial official or on account of the performance of the duties of such a position.

Before 1962, bribing a federal judge or juror might be prosecuted either under section 1503 or under the bribery statute, 18 U.S.C. 206 (1958 ed.). Then in 1962 the corresponding provision in §206 disappeared when Congress revised federal bribery statutes and merged a number of individual sections into the general proscriptions now found in 18 U.S.C. 201. That §201 applies to bribery involving judges and certainly to bribery involving jurors seems clear from its language, its history, and the limited available case law. Since 1962, however, such cases appear to have been prosecuted in most instances under §1503 alone.

A separate section, 18 U.S.C. 373, outlaws conspiracies to obstruct jurors and other judicial officers in the performance of their duties by force, intimidation or threat.

Section 1503 carries a general maximum penalty of imprisonment for not more than 10 years and, with one unusual exception, an escalating penalty structure for more serious violations. Thus, the offense is punishable by imprisonment for not more than 20 years, if it involves either an attempted killing or is committed against a juror in a case involving a class A or B felony, i.e . a felony punishable by death, life imprisonment or a maximum term of imprisonment of at least twenty-five years. If the offense involves a murder, it is punishable in the same manner as an offense under 18 U.S.C. 1111, that is, by death or imprisonment for any term of years or for life. In something of a curiosity, if the offense involves manslaughter it is punishable in the same manner as an offense under 18 U.S.C. 1112, that is, by imprisonment for not more than 10 years in the case of voluntary manslaughter and not more than 6 years in the case of involuntary manslaughter. As a consequence, the penalty for a violation of §1503 that involves voluntary manslaughter is no more severe than for a violation that does not involve a killing (10 years) and less severe (6 years) if the killing is involuntary manslaughter. Each of the offenses other than murder is also subject to a fine of not more than $250,000 (not more than $500,000 for an organization).

A conspiracy in violation of §372 is punishable by imprisonment for not more than 6 years and a fine of $250,000 (or $500,000 if the defendant is an organization).

Auxiliary Offenses and Liability

Conspiracy to violate §1503 can also be prosecuted under the general conspiracy statute, 18 U.S.C. 371. Section 1503 offenses are RICO predicate offenses and consequently are money laundering predicate offenses. Those who aid and abet a §1503 offense are liable as principals and are punishable as if they committed the offense themselves. An individual who knows that another has committed a §1503 offense and nevertheless assists the offender in order to hinder his capture, trial, or punishment is in turn punishable as an accessory after the fact. And an individual who affirmatively conceals the commission of a §1503 offense by another is guilty of misprision.

Section 1503 contains no explicit statement of extraterritorial application. Nevertheless, the courts seem likely to conclude that overseas misconduct in violation of §1503 may be prosecuted in this country.

Subsection 1512(i) establishes venue for prosecution under §1512 or §1503 in any district where the obstruction occurs or where the obstructed proceeding occurs or is to occur. The subsection was enacted to resolve a conflict among the circuits on the question of whether venue for a prosecution of either of the two sections was proper in the district of the obstructed proceeding. Thereafter, the Supreme Court clarified venue's constitutional boundaries when it declared that venue is ordinarily only proper where a conduct element of the offense occurs, but left for another day the question of whether venue might be proper in a district where the effect of the offense is felt. The limited subsequent case law on the question has arisen under other statutes and generally holds that the "effects" basis for venue remains valid "only when Congress had defined the essential conduct elements in terms of those effects."

Obstructing Congressional or Administrative Proceedings (18 U.S.C. 1505)

Section 1505 outlaws interfering with Justice Department civil investigative demands issued in antitrust cases. However, it deals primarily with obstructing congressional or federal administrative proceedings, condemning:

I. Whoever

II. A. corruptly, or

B. by threats or

C. force, or

D. by any threatening letter or communication

III. A. influences,

B. obstructs, or

C. impedes or

D. endeavors to

1. influence,

2. obstruct, or

3. impede

IV. A. 1. the due and proper administration of the law under which

2. any pending proceeding is being had

3. before any department or agency of the United States, or

B. 1. the due and proper exercise of the power of inquiry under which

2. any inquiry or investigation is being had

3. by

a. either House, or

b. any committee of either House or

c. any joint committee of the Congress

shall be fined under this title or imprisoned not more than 5 years (not more than 8 years if the offense involves domestic or international terrorism), or both.

Prosecutions under §1505 have been relatively few, at least until recently, and most of these arise as obstructions 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 qualify as a "proceeding" for purposes of §1505. In doing so, it rejected the notion "that §1505 applies only to adjudicatory or rule-making activities, and does not apply to wholly investigatory activity." Moreover, proximity to an agency's adjudicatory or rule-making activities, such as auditors working under the direction of an officer with adjudicatory authority, has been used to support a claim that an obstructed agency activity constitutes a proceeding. 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 congressional or administrative proceedings, §1505 condemns only that misconduct which is intended to obstruct the administrative proceedings or the due and proper exercise of the power of inquiry. In order to overcome judicially identified uncertainty as to the intent required, Congress added a definition of "corruptly" in 1996: "As used in §1505, the term 'corruptly' means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information," 18 U.S.C. 1515(b). Examples of the type of conduct that have been found obstructive vary.

Section 1505 offenses are not RICO or money laundering predicate offenses. Section 1505 has neither separate conspiracy provision nor an explicit exterritorial jurisdiction provision. However, conspiracy to obstruct administrative or congressional proceedings may be prosecuted under 18 U.S.C. 371, and the courts would likely find that overseas violations of §1505 may be tried in this country. Moreover, the general aiding and abetting, accessory after the fact, and misprision statutes are likely to apply with equal force in the case of obstruction of an administrative or congressional proceeding.

Retaliating Against Federal Witnesses (18 U.S.C. 1513)

Congress outlawed retaliation against federal witnesses under §1513 at the same time it outlawed witness tampering under §1512. Although somewhat more streamlined, §1513 shares a number of attributes with §1512. The definitions in §1515 apply to both sections. Consequently, the prohibitions apply to witnesses in judicial, congressional, and administrative proceedings. There is extraterritorial jurisdiction over both offenses. In slightly different terms, both protect witnesses against murder and physical abuse—committed, attempted, conspired, or threatened. Offenses under the two are comparably punished.

Section 1513 prohibits witness or informant retaliation in the form of killing, attempting to kill, inflicting or threatening to inflict bodily injury, damaging or threatening to damage property, and conspiracies to do so.

"The elements of an offense under 18 U.S.C. §1513 are (1) knowing engagement in conduct; (2) either causing, or threatening to cause, bodily injury to another person; and (3) the intent to retaliate for, inter alia , the attendance or testimony of a witness at an official proceeding."

It also prohibits economic retaliation against federal witnesses, but only witnesses in court proceedings and only on criminal cases. It does not reach economic retaliation against witnesses on the basis of information relating to the violations of supervised release, bail, parole, or probation conditions.

To satisfy the assault prong of §1513, the government must prove that the defendant bodily injured another in retaliation for the victim's testimony or service as a federal informant. The extent of the injuries need not be extensive, nor in the case of a threat even carried out. In fact, in the case of a threat, all that is required is the intent to communicate a retaliatory threat; it matters not that the defendant neither planned nor had the ability to carry out the threat. As a general rule, the intent to retaliate need not have been the sole motivation for the attack.

Section 1513 offenses are RICO predicate offenses and consequently money laundering predicate offenses. They are also violent offenses and therefore may result in the application of those statutes in which the commission of a violent crime is an element or sentencing factor. Those who aid and abet a §1513 offense are liable as principals and are punishable as if they committed the offense themselves. An individual who knows another has committed a §1513 offense and nevertheless assists the offender in order to hinder his capture, trial or punishment is in turn punishable as an accessory after the fact. And an individual who affirmatively conceals the commission of a §1513 by another is guilty of misprision.

Conspiracy to Obstruct (18 U.S.C. 371)

If two or more persons conspire either to commit any offense against the United States or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Conspiracy to Defraud

Section 371 contains both a general conspiracy prohibition and a specific obstruction conspiracy prohibition in the form of a conspiracy to defraud proscription. The elements of conspiracy to defraud the United States are (1) an agreement of two more individuals; (2) to defraud the United States; and (3) an overt act by one of the conspirators in furtherance of the scheme. The "fraud covered by the statute 'reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of Government" by "deceit, craft or trickery, or at least by means that are dishonest." The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of a governmental entity will suffice.

Conspiracy to Commit a Substantive Offense

The elements of conspiracy to commit a substantive federal offense are "(1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime." Conspirators must be shown to have exhibited the same level of intent as required for the underlying substantive offense. The overt act need only be furtherance of the scheme; it need not be the underlying substance offense or even a crime at all. Conspirators are liable for the underlying offense should it be accomplished and for any reasonably foreseeable offense committed by a coconspirator in furtherance of the common plot.

As noted earlier, a number of federal statues, §§1512 and 1513 among them, include within their proscriptions a separate conspiracy feature that outlaws plots to violate the section's substantive provisions. The advantage for prosecutors of these individual conspiracy provisions is that they carry the same penalties as the underlying substantive offense and that they ordinarily do not require proof of an overt act. Although §§1512 and 1513 provide an alternative means of prosecuting a charge of conspiracy to violate their underlying prohibitions, the government may elect to proceed under general conspiracy statute, 18 U.S.C. 371.

Contempt

Contempt of Court

The oldest of the general obstruction provisions is contempt. The crime of contempt of court comes to us from antiquity. Blackstone speaks of the power to punish disturbances in the presence of the king's courts that existed before the Conquest, and he notes that the common law classified as contempt the failing to heed the writs or summons of the king or his courts of justice. The first Congress empowered the federal courts "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing."

Contemporary federal contempt is derived from statute, rule, and inherent or auxiliary authority. Section 401 of title 18 of the United States Code notes the power of a federal court to punish by fine or imprisonment misconduct committed in the presence of the court or by its officers and disobedience of its orders. Rule 42 of the Federal Rules of Criminal Procedure supplies procedures to be followed in such cases, other than those dealt with summarily. Section 402 provides for a jury trial when the allegations of criminal contempt also constitute separate federal or state criminal offenses.

Criminal Contempt

Contempt may be civil or criminal. Civil contempt is coercive and remedial, calculated to compel the recalcitrant to obey the orders of the court or to compensate an opponent aggrieved by the failure to do so. Criminal contempt is punitive.

A wide variety of obstructions of justice are punishable as criminal contempt of court. They include:

disobedience of a court order to provide handwriting exemplars, violation of a temporary restraining order entered in unfair trade practices action, unlawful disclosure by grand jurors of their vote or deliberations, asset transfer in violation of a bankruptcy court's asset freeze order, refusing to testify before the grand jury, false statement to a probation officer, vulgar insults addressed to court, violation of a condition of supervised release, fraudulently sold business opportunities in violation of court-ordered Federal Trade Commission consent decree, refusing to testify at trial, violation of restraining order prohibiting harassment of the bankruptcy court, violation of the court's witness sequestration order, failure to appear at the supervised release revocation hearing, attorney's repeated failure to follow court's instructions relating to the conduct of the trial, threatening jurors, retaliating against a witness in violation of the court's restraining order, defendant's contacting witnesses in violation of the court's order.

Criminal contempt comes in two forms, direct and indirect. Direct contempt involves misconduct in the presence of the court and is punished to ensure the decorum of the court and the dignity of the bench. Indirect contempt consists of those obstructions committed outside the presence of the court. Direct contempt may be summarily punished; indirect contempt may not.

Summary contempt . A court may summarily punish as direct criminal contempt under subsection 401(1) and Rule 42(b) of the Federal Rules of Criminal Procedure, "[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice." A witness who in the presence of the court refuses to testify at trial may be summarily punished for contempt, as may an individual who urinates on the courtroom floor in the presence of the court, or who addresses the court or the jury in vulgar and insulting terms. The range of misbehavior proscribed is narrow, however, because the procedural protections afforded the offender are few. There is no indictment, no right to counsel, no trial, no hearing, no right to present exculpatory evidence. There is only the intentional act or omission by the offender and the pronouncement of punishment by the court.

The proximity of misconduct occurring "so near ... as to obstruct the administration of justice" is a matter of physical proximity not proximity to the subject matter of the proceedings. Thus, the misbehavior that may summarily be punished does not include misconduct occurring elsewhere that has an adverse impact or potentially adverse impact on the judicial proceedings, such as the tardy arrival of an attorney at court, or a lawyer's failure to present the court with a doctor's affidavit justifying his client's absence, or a party's efforts to influence a juror during breakfast several floors removed from the courtroom, or a party's failure to appear for depositions, or encourage others to flood the court with e-mails. Each of these might be punished as criminal contempt, but not summarily.

If not punished summarily, a person charged with criminal contempt is entitled under Rule 42(a) to a statement of the essential facts underlying the charge, a reasonable opportunity to prepare a defense, and notice of the time and place where the hearing is to occur. A person so charged is also entitled to the assistance of counsel; to be prosecuted by a disinterested prosecutor; to subpoena witnesses; to examine and cross-examine witnesses; to present a defense; to the benefit of the privilege against self-incrimination and of the double jeopardy bar; and, if the contempt is to be punished by a term of imprisonment of more than six months, to a jury trial. The right to be prosecuted by the United States Attorney or some other neutral prosecutor is reinforced by the Rule, but may be waived by the person charged. In the trial of criminal contempt in violation of §401(1) that may not be punished summarily "the Government must establish beyond a reasonable doubt: (1) misbehavior of a person, (2) which is in or near the presence of the Court, (3) which obstructs the administration of justice, and (4) which is committed with the required degree of criminal intent."

Misbehavior by court officers . Subsection 401(2) is cited most often for the proposition that attorneys are not officers of the court for purposes of the subsection. Otherwise, it is seldom prosecuted or cited.

Violation of a court order . A court may punish as criminal contempt under subsection 401(3) and the procedures outlined in Rule 42(a) of the Federal Rules of Criminal Procedure, "[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command." The conviction for criminal contempt in a violation of subsection 401(3) requires the government to prove beyond a reasonable doubt that the defendant willfully violated a reasonable specific court order. Obstruction of justice is not an element of the offense, but a willful intent is, which means that the defendant must have known of the order and have deliberately or recklessly violated it. Mere negligence is not enough. A person may not be found in criminal contempt of an unclear order of the court, but disobedience of an invalid order is nonetheless punishable as criminal contempt.

Although the double jeopardy bar applies to criminal contempt, it does not preclude the use of civil contempt against an individual who has been convicted of criminal contempt of the same recalcitrance nor prosecution of a criminal contempt charge after civil contempt has been imposed. Moreover, the double jeopardy prohibition does not bar sequential prosecution of criminal contempt and substantive offenses arising out of the same events.

Unless summarily punished, sentencing for contempt begins with the Sentencing Guidelines. The guideline for contempt, however, is not always easily discerned. The Guidelines assign a specific guideline for most federal offenses. It assigns contempt to an obstruction of justice guideline, U.S.S.G. §2J1.1. But §2J1.1 states in its entirety, "apply §2X5.1 (Other Offenses)." The accompanying commentary does explain that the Sentencing Commission decided not to draft a specific guideline for contempt because of the variety of misconduct that can constitute the offense. It goes on to say that in some instances the general obstruction of justice guideline or the theft guideline may be most analogous for violations of §401. Section 2X5.1 declares "[i]f the offense is a felony for which no guideline expressly has been promulgated, apply the most analogous offense guideline." Federal appellate court decisions indicate that this "most analogous" standard has been used to mirror the misconduct underlying the contempt conviction, although with seemingly conflicting results in some instances.

The Guidelines ordinarily operate beneath the maximum penalties established by statute. Section 401, however, speaks of neither a maximum term of imprisonment nor a maximum fine level. It simply states that criminal contempt may be punished by imprisonment or by a fine or both. This approach has implications for things like probation, special assessments, and terms of supervised release that turn upon the maximum term of imprisonment associated with a particular offense. Probation, for example, is unavailable to those charged with a Class A or B felony, special assessments range from $5 to $100 depending on the classification of the offense for which an individual is convicted, and the maximum permissible term of supervised release, if any, is determined in many instances by whether the offender has been convicted of a Class A, B, C, D, or E felony or a misdemeanor other than a petty offense.

When the question has been raised, prosecutors have sometimes argued that criminal contempt under §401 should be considered a class A felony, since it is punishable by any term of imprisonment up to and including life imprisonment. Defendants have argued alternatively that criminal contempt under §401 should be (1) considered neither felony nor misdemeanor nor petty offense, or (2) classified according to the sentence imposed or the sentencing maximum the court agrees to accept, as is done when the question is whether a contempt case must be tried before a jury. The Ninth Circuit chose something of a middle ground and classified criminal contempt according to the maximum sentence for the most analogous offense. The Eleventh Circuit, on the other hand, concluded that contempt is sui generis and cannot accurately be classified as either a felony or misdemeanor of any stripe.

Civil Contempt

Civil contempt is coercive and compensatory rather than punitive. A court may hold an individual or entity in civil contempt upon a showing that "(1) the alleged contemnor had notice of the order, (2) the order was clear and unambiguous, (3) the alleged contemnor had the ability to comply with the order, and (4) the alleged contemnor violated the order." Coercive imprisonment or daily fines must end when the contemnor complies or becomes unable to do so. Compensatory contempt in the form of money judgment or other form of relief must be related to the losses suffered as a consequence of violation of the order.

Contempt of Congress

Statutory Contempt of Congress

Contempt of Congress is punishable by statute and under the inherent powers of Congress. Congress has not exercised its inherent contempt power for some time. The statutory contempt of Congress provision, 2 U.S.C. 192, has been employed only slightly more often and rarely in recent years. Much of what we know of the offense comes from Cold War period court decisions. Parsed to its elements, §192 states that:

I. Every person

II. summoned as a witness

III. by the authority of either House of Congress

IV. to

A. give testimony, or

B. to produce papers

V. upon any matter under inquiry

VI. before

A. either House,

B. any joint committee,

C. any committee of either House

VII. who willfully

A. makes default, or

B. refuses

1. to answer any question

2. pertinent to the matter under inquiry

shall be guilty of a misdemeanor, punishable by a fine of not more than $1,000 or less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

The Dictionary Act states that, unless the context suggests otherwise when the term "person" appears in the United States Code, it includes organizations as well. Nevertheless, prosecution appears to have been limited to individuals, although the custodians of organizational documents have been charged. The term "summoned," on the other hand, has been read broadly, so as to extend to those who have been served with a testimonial subpoena, to those who have been served with a subpoena to produce documents or other items (subpoena duces tecum), and to those who have appeared without the benefit of subpoena.

Section 192 applies only to those who have been summoned by the "authority of either House of Congress." As a consequence, the body which issues the subpoena must enjoy the authority of either the House or Senate to do so, both to conduct the inquiry and to issue the subpoena. Authority may be vested by resolution, rule, or statute. Section 192 speaks only of the houses of Congress and their committees, but there seems little question that the authority may be conferred upon subcommittees.

The testimony or documents sought by the subpoena or other summons must be sought for "a matter under inquiry" and in the case of an unanswered question, the question must be "pertinent to the question under inquiry." The statute outlaws "refusal" to answer pertinent questions, but the courts have yet to say whether the proscription includes instances where the refusal takes the form of false or deceptive testimony: There is no word on whether the section outlaws any refusal to answer honestly or only unequivocal obstinacy. On at least two occasions, however, the courts have reportedly accepted nolo contendere pleas under §192 based upon a false statement predicate.

Section 192 bans only "willful" recalcitrance. Thus, when a summoned witness interposes an objection either to an appearance in response to the summons or in response to a particular question, the objection must be considered, and if found wanting, the witness must be advised that the objection has been overruled before he or she may be successfully prosecuted. The grounds for a valid objection may be found in rule, statute, or the Constitution, and they may be lost if the witness fails to raise them in a timely manner.

The Fifth Amendment protects witnesses against self-incrimination. The protection reaches wherever incriminating testimonial communication is compelled whether in criminal proceedings or elsewhere. It covers communications that are either directly or indirectly incriminating, but only those that are "testimonial." Organizations enjoy no Fifth Amendment privilege from self-incrimination, nor in most cases do the custodians of an organization's documents unless their act of producing the subpoenaed documents is itself an incriminating testimonial communication. An individual's voluntarily created papers and records are by definition not compelled communications and thus ordinarily fall outside the privilege as well. Moreover, the protection may be waived if not invoked, and the protection may be supplanted by a grant of immunity which promises that the truthful testimony the witness provides or is compelled to provide will not be used directly or derivatively in his or her subsequent prosecution.

Aside from the Fifth Amendment, the status of constitutionally based objections to a congressional summons or question is somewhat more amorphous. The First Amendment affords a qualified immunity from subpoena or interrogation, whose availability is assessed by balancing competing individual and congressional interests. Although a subpoena or question clearly in furtherance of a legislative purpose ordinarily carries dispositive weight, the balance may shift to individual interests when the nexus between Congress's legitimate purpose and the challenged subpoena or question is vague or nonexistent. In cases of such imprecision, the government's assertion of the pertinence necessary for conviction of statutory contempt may become suspect.

The Fourth Amendment may also supply the basis for a witness to disregard a congressional subpoena or question. The Amendment condemns unreasonable governmental searches and seizures. The Supreme Court in Watkins confirmed that witnesses in congressional proceedings are entitled to Fourth Amendment protection, but did not explain what such protection entails. In fact, the courts have addressed only infrequently the circumstances under which the Fourth Amendment cabins the authority of Congress to compel a witnesses to produce papers or response to questions.

When dealing with the subpoenas of administrative agencies, the Court noted some time ago that the Fourth Amendment "at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable." At the same time, it pointed out that as in the case of a grand jury inquiry probable cause is not a prerequisite for a reasonable subpoena. In later years, it explained that where a grand jury subpoena is challenged on relevancy grounds, "the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation." The administrative subpoena standard has been cited on those infrequent occasions when the validity of a congressional subpoena has been challenged on Fourth Amendment grounds. Contempt convictions have been overturned, however, when a Fourth Amendment violation taints the underlying subpoena or question.

Perhaps most unsettled of all is the question the extent to which, if any, the separation of powers doctrine limits the subpoena power of Congress over members and former members of the other branches of government. As a practical matter, however, the other branches of government ultimately control the prosecution and punishment for statutory contempt of Congress, at least under the current state of the law. Section 194 states that the United States Attorney to whom Congress refers a violation of §192 has a duty to submit the matter to the grand jury. Should a grand jury indictment be forthcoming further prosecution is at the discretion of the executive branch in proceedings presided over by the judicial branch.

The rules governing the congressional hearing may also afford a witness the basis to object to a congressional summons or interrogation and to defend against a subsequent prosecution for violation of §192. No successful prosecution is possible if the congressional tribunal in question has failed to follow its own rules to the witness's detriment. Among other things those rules may identify evidentiary privileges available to a witness. The evidentiary rules that control judicial proceedings do not govern legislative proceedings, unless and to the extent they are constitutionally required or have been made applicable by congressional rule and decision of the tribunal. To the extent the rules or body issuing the subpoena afford a witness an attorney-client or attorney work product protection or any other evidentiary privilege, the privilege provides a valid basis to object and defend.

Section 192 states that violations are punishable by imprisonment for not less than one month nor more than twelve months and a fine of not less than $100 nor more than $1,000. By virtue of generally applicable amendments enacted after the section, class A misdemeanors (crimes punishable by imprisonment for not more than one year) are subject to a fine of not more than $100,000 for individuals and not more than $200,000 for organizations.

Inherent Contempt of Congress

Congress's exercise of its inherent power to punish for contempt of its authority predates the 1857 enactment of the original version of its statutory contempt provisions. The statute has always been recognized as a supplement rather than a replacement of the inherent power. In fact for the first half of the statute's existence, Congress continued to rely upon its inherent power notwithstanding the presence of a statutory alternative. Thereafter, Congress began to resort to the statutory alternatives more regularly. The inherent power lay dormant and appears have been last invoked nearly a century ago.

Contempt of Court at Congressional Behest

There are two statutory provisions available to permit Congress to call upon the courts to overcome the resistance of witnesses in congressional proceedings. One covers immunity orders where the witness has claimed his Fifth Amendment privilege against self-incrimination. Continued recalcitrance after the grant of immunity is punishable under the court's civil and criminal contempt powers. The second permits the court enforcement of a Senate subpoena but apparently only to the extent of the court's civil contempt powers.

Obstruction of Justice by Violence or Threat

In addition to the basic federal crimes of obstruction of justice, federal law features a host of criminal statutes that proscribe various obstructions according to the obstructive means used, be it physical violence, bribery, property destruction, or deception. Thus, quite aside from the general obstruction provisions of §§1512, 1513, 1505, and 1503, several federal statutes outlaw use of threats or violence for the purpose of obstructing federal government activities.

Violence and Threats Against Officials, Former Officials, and Their Families (18 U.S.C. 115)

Section 115 prohibits certain acts of violence against judges, jurors, officials, former officials, and their families in order to impede or to retaliate for the performance of their duties. The section consists of three related offenses. One is designed to protect the families of judges and officials against threats and acts of violence; another to protect judges and officials from threats; and a third to protect former judges, former officials, and their families from retaliatory threats and acts of violence. In more precise terms, they declare:

(1)(Families)

I. Whoever

II. A. assaults

B. kidnaps,

C. murders,

D. attempts to assault, kidnap, or murder,

E. conspires to assault, kidnap, or murder, or

F. threatens to assault, kidnap, or murder

III. a member of the immediate family of

A. a federal judge,

B. a Member of Congress,

C. the President and any other federal officer or employee

IV. with the intent

A. either to

1. a. impede,

b. intimidate, or

c. interfere with

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. in the performance of official duties;

B. or to

1. retaliate against

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. for the performance of official duties

shall be punished as provided in subsection (b).

Subsection 115(a)(1)(A) only condemns violence against the families of federal officials, not violence committed against the officials themselves. Subsection 115(b) makes kidnaping, murder, and attempts and conspiracies to commit such offenses in violation of the section subject to penalties imposed for those crimes when committed against the officials themselves under other sections of the Code, i.e., 18 U.S.C. 1201, 1111, 1113, and 1117. The penalties for assault are calibrated according the seriousness of the assault. Simple assault carries a maximum penalty of imprisonment for one year; assault involving physical contact or intent to commit another felony, not more than 10 years; assault result in bodily injury, not more than 20 years; and assault resulting in serious bodily injury or involving the use of dangerous weapon, not more than 30 years. Except in the case of simple assault or murder, the offenses are subject to a fine of not more than $250,000; simple assault carries a fine of not more than $100,000.

(2)(Threats)

I. Whoever

II. threatens to

A. assault

B. kidnap, or

C. murder

III.A. a federal judge,

B. a Member of Congress,

C. the President and any other federal officer or employee

IV. with the intent

A. either to

1. a. impede,

b. intimidate, or

c. interfere with

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. in the performance of official duties;

B. or to

1. retaliate against

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. for the performance of official duties

shall be punished as noted earlier by imprisonment for not more than 6 years in the case of a threatened assault and not more than 10 years in the case of all other threats outlawed in the section.

Subsection 115(a)(1)(B) protects, among others, "an official whose killing would be a crime under [section 1114]." Section 1114, in turn, outlaws killing any "officer or employee of the United States," which has lead one court to conclude that subsection 115(a)(1)(B) protects any federal officer or employee.

The circuits are divided over the question of whether a violation of subsection 115(a)(1)(B) is a specific intent offense. The Eleventh Circuit has held that it is not and as a consequence the government need not show that the defendant knew that his victim was a federal official. The Sixth Circuit, on the other hand, held that it is a specific intent offense and as a consequence a defendant is entitled to present a defense of intoxication or diminished capacity.

They appear likewise divided over whether the threat proscribed in the section is one that would instill fear in a reasonable person to whom it was communicated or one a reasonable defendant would understand would convey a sense of fear. The Ninth Circuit at one point suggested that the Supreme Court might have resolved the split when it defined those "true threats" that lie beyond the protection of the First Amendment's free speech clause as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." That hope appears forlorn.

(3)(Former Officials)

I. Whoever

II. A. assaults

B. kidnaps,

C. murders,

D. attempts to assault, kidnap, or murder, or

E. conspires to assault, kidnap, or murder, or

III. A. a former federal judge,

B. a former Member of Congress,

C. the former President and any other former federal officer or employee, or

D. a member of the immediate family of such former judge, Member or individual

IV. on account of the performance of their former official duties

shall be punished as provided in subsection (b) as described above with respect to assaults, kidnapings, and murders of members of the families of federal officials.

Violence and Threats Against Federal Officials on Account of the Performance of Their Duties

Section 1114 of title 18 of the United States Codes outlaws murder, manslaughter, and attempted murder and manslaughter when committed against federal officers and employees as well as those assisting them during or on account of the performance of their duties. The section's coverage extends to government witnesses. Other provisions outlaw kidnaping or assault committed against federal officers and employees during or on account of the performance of their duties, but their coverage of those assisting them is less clear.

Beyond these general prohibitions, federal law proscribes the murder, kidnaping, or assault of Members of Congress, Supreme Court Justices, or the Cabinet Secretaries; and a number of statutes outlaw assaults on federal officers and employees responsible for the enforcement of particular federal statutes and programs.

Obstruction of Justice by Bribery

Section 1512(b) outlaws witness tampering by corrupt persuasion. Several other federal statutes outlaw bribery in one form or another. The main federal bribery statutes are 18 U.S.C. 201, which prohibits bribes involving federal officials, employees, jurors and witnesses, and 18 U.S.C. 666, which prohibits bribes involving the recipients of federal funding. Although it makes no mention of bribery, the honest services component of the mail and wire fraud statutes, 18 U.S.C. 1341, 1343, 1346, in some circumstances may afford prosecutors of public corruption greater latitude and more severe penalties than §201. The Hobbs Act, 18 U.S.C. 1951, condemns public officials who use their position for extortion. A few other statutes, noted in the margin, outlaw bribery to obstruct specific activities.

Bribery of Jurors, Public Officers and Witnesses (18 U.S.C. 201)

Section 201 outlaws offering or soliciting bribes or illegal gratuities in connection with judicial, congressional and administrative proceedings. Bribery is a quid pro quo offense. In simple terms, bribery under "§201(b)(1) as to the giver, and §201(b)(2) as to the recipient ... require[] a showing that something of value was corruptly given, offered, or promised to a public official (as to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient) with intent ... to influence any official act (giver) or in return for being influenced in the performance of any official act (recipient)."

In the case of witnesses, subsection 201(b)(3) as to the giver and subsection 201(b)(4) as to the recipient require a showing that something of value was corruptly offered or sought with the intent to influence or be influenced with respect to testimony before, or flight from, a federal judicial, congressional committee, or administrative trial, hearing or proceeding.

The subsections condemn invitations and solicitations to corruption, but the entreaties need not be successful nor does it matter that corruption was unnecessary. The intent required for bribery, and the difference between the bribery and illegal gratuity offenses, is the intent to deliberately offer or accept something of value in exchange for the performance or omission of an official act. Section 201 defines the public officials covered broadly to envelope jurors in federal and District of Columbia courts, federal and D.C. officers and employees, as well as those acting on their behalf. This includes anyone who "occupies a position of public trust with official federal responsibilities." Although there is a statutory definition of "official act," it has been a matter of some dispute, perhaps because of its sweeping language. The question becomes particularly difficult when the bribery charge alleges that a bribe was provided in exchange for some unspecified official act or acts or for some general course of conduct. The application difficulties seem to have been exemplified by one appellate panel which held that governmental plea bargain practices fell within the reach of §201's prohibitions. No such difficulties seem to attend the provisions of subsection 201(d) which make it clear that prohibitions do not preclude the payment of witness fees, travel costs, or other reasonable witness expenses.

The penalty structure for illegal gratuities under §201 is typical. Illegal gratuities, that is, offering or soliciting a gift as a reward for an official act, is punishable by imprisonment for not more than two years and/or a fine of not more than $250,000. The penalty structure for bribery, however, is fairly distinctive: imprisonment for not more than 15 years; a fine of the greater of three times the amount of the bribe or $250,000; and disqualification from holding any federal position of honor or trust thereafter.

Section 201 offenses are RICO and money laundering predicate offenses. Federal law governing principals, accessories after the fact, misprision, conspiracy, and extraterritorial jurisdiction applies with equal force to bribery and illegal gratuities under §201.

Obstruction by Bribery Relating to Federally Funded Programs (18 U.S.C. 666)

Section 666 embodies two offenses: embezzlement from federally funded programs or bribery relating to transactions involving such programs. Congress enacted §666 out of concern in part that federal program bribery involving state or local officials would otherwise lie beyond the reach of federal criminal law. The Supreme Court has observed that it constitutes a valid exercise of Congress's legislative authority under the Constitution's Spending and Necessary and Proper Clauses.

The bribery offense applies when (1) any agent of a recipient of more than $10,000 a year in federal program funds, (2) corruptly, (3) solicits or accepts, or is offered or given, (4) anything of value, (5) in order to influence or reward the agent, (6) with respect to a transaction involving the recipient and valued at $5,000 or more.

Section 666(d)(1) defines "agent" to include any employee, officer, or representative authorized to act on behalf of the recipient. The absence of a direct connection between the bribe and any federal funds is no bar to prosecution. Thus, an agent need not have authority to act with respect to the funds the entity receives from the United States. Whether he must have authority to act with respect to the recipient's funds in some manner is more uncertain. The section reaches agents of any governmental or non-governmental entity that receives $10,000 or more in federal funds "in any one year period." It extends to corrupt offers and solicitations whether they occur before or after federal funds have arrived.

Section 666 does not say what constitutes "corruptly" giving or accepting a thing of value. It does exempt salaries and other ordinary business expenses. The lower courts have yet to endorse a single definition of the term, finding that the term means either a breach of public or private duty or finding alternatively that it means committing an unlawful act or committing a lawful act illegally.

As for the offer-or-solicit element, bribery is ordinarily a this-for-that ( quid pro quo ) offense. Nevertheless, several federal appellate courts have concluded that §666 demands no more than an offer or request with the intent to influence a business, transaction, or series of transactions; proof of a specific act in exchange for a thing of value, that is, proof of a specific quid pro quo , is unnecessary.

The "thing of value" element "encompasses all transfers of personal property or other valuable consideration, in exchange for the influence or reward." The placement of the $5,000 threshold makes it difficult to determine whether the section is referring to the value of the bribe or the value of the targeted transaction: "Whoever ... corruptly gives ... anything of value ... with intent to influence ... an agent ... in connection with any ... transaction ... involving anything of value of $5,000 or more.... " Some courts use the value of the thing offered; others, the value of the transaction with which it is associated.

Section 666 speaks of influencing and rewarding. This suggests an intention to outlaw both bribery as well as gratuities, that is, bribery as well as rewards for things past done. Some courts agree; others do not.

Finally, the section's reach is not confined to commercial transactions. The term "business, transaction, or series of transactions" encompasses any of the recipient entity's activities.

Section 666 makes violations punishable by imprisonment for not more than 10 years and a fine of not more than $250,000. Section 666 does not appear on either the RICO or money laundering predicate lists. Violations, however, may constitute RICO and consequently money laundering predicates to the extent that they constitute violations of both §666 and the bribery felony under the law of the state where the bribery occurs. Federal law governing principals, accessories after the fact, misprision, and conspiracy applies to §666 as well.

Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343, 1346)

The mail fraud and wire fraud statutes have been written and constructed with such sweep that they cover among other things, obstruction of government activities by corruption. They reach any scheme to obstruct the lawful functioning in the judicial, legislative, or executive branch of government that involves (1) the deprivation of money, property, or honest services, and (2) the use of the mail or wire communications as an integral part of scheme.

The elements of the two offenses are similar. Mail fraud is the federal crime of scheming to defraud when use of the mail furthers the scheme, 18 U.S.C. 1341. Wire fraud is the federal crime of scheming to defraud when use of wire communications furthers the scheme, 18 U.S.C. 1343. The courts have construed their common elements in the same manner. Thus, what constitutes a scheme to defraud is the same in both instances: any act or omission that "wrong[s] one in his property rights by dishonest methods or schemes and usually signif[ies] the deprivation of something of value by trick, deceit, chicane or overreaching." The deception that is part of the scheme, however, must be material; that is, it must have a natural tendency to induce reliance in the victim to his detriment or the offender's benefit. Both crimes require a specific intent to defraud, and they are punishable regardless of whether the scheme succeeds. As for the jurisdictional element, the "statute doesn't require that a defendant be able to anticipate every technical detail of a wire [or postal] transmission, before she may be held liable for causing it. It's enough if she 'sets forces in motion which foreseeably would involve' use of the wires." And so it is with mail fraud.

Both statutes refer to a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses ... " The extent to which that phrase encompasses intangibles has not always been clear. In spite of a generous interpretation by many of the lower federal appellate courts that encompassed frustration of governmental functions in many forms, the Supreme Court in McNally declared that the mail fraud statute did not proscribe schemes to defraud the public of the honest and impartial services of its public employees or officials.

Lest McNally be read to limit the mail and wire fraud statutes exclusively to tangible money or property, the Court explained in Carpenter , soon thereafter, that the "property" of which the mail and wire fraud statutes speak includes recognized intangible property rights. There, it upheld application of the mail fraud statute to a scheme to deny a newspaper its pre-publication property right to its confidential information. The Court later confirmed that the wire fraud statute could be used against a smuggling scheme that deprived a governmental entity of its intangible right to collect tax revenues.

In the wake of McNally , Congress expanded the scope of the mail and wire fraud statutes with the passage of 18 U.S.C. 1346, which defines the "scheme to defraud" element in the fraud statutes to include a scheme "to deprive another of the intangible right of honest services." Section 1346 extends mail and wire fraud to prohibit the deprivation of the intangible right to honest services of both public and private officers and employees.

Until construed more narrowly by the Supreme Court in Skilling , some of the lower courts understood it to proscribe bribery, kickbacks as well as various forms of self-dealing committed to the detriment of those to whom the offender owed a fiduciary duty of some kind. In the public sector, it was thought to condemn dishonesty in public officers and employees, although the exact scope of that proscription remained largely undefined. Some lower courts said that honest services fraud in the public sector "typically occurs in either of two situations: (1) bribery, where a public official was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain." The bribery examples caused little pause; more perplexing were the issues of how broadly the conflict-of-interest provision might reach and what atypical situations might come within the honest services fraud prohibition. The uncertainty led the Supreme Court to conclude that Congress intended the honest services provision to apply to bribery and kickbacks, but that "[i]nterpreted to encompass only bribery and kickbacks, [it] was not unconstitutionally vague."

Prosecutors may favor a mail or wire fraud charge over or in addition to a bribery charge if for no other reason than that under both fraud sections offenders face imprisonment for not more than 20 years rather than the 15-year maximum found in §201.

Mail fraud and wire fraud are both RICO and money laundering predicate offenses. The legal precepts relating to principals, accessories after the fact, misprision, and conspiracy apply to mail fraud and wire fraud as well. However, the courts are unlikely to conclude that either applies to misconduct occurring entirely overseas, since their jurisdictional elements (United States mails and interstate and foreign commerce of the United States) are clearly domestic.

Obstruction by Extortion Under Color of Official Right (18 U.S.C. 1951)

The Hobbs Act speaks of the obstruction of commerce, but it is mentioned here because bribery and extortion under color of official right corrupt the due administration of justice in similar ways. The Hobbs Act outlaws the obstruction of interstate or foreign commerce by means of robbery or extortion. Extortion under the act comes in two forms: extortion induced by fear and extortion under color of official right. Extortion under color of official right occurs when a federal, state, or local public official receives a payment to which he is not entitled, knowing it is being provided in exchange for the performance of an official act. Liability may be incurred by public officers and employees, those in the process of becoming public officers or employees, their coconspirators, or those who aid and abet public officers or employees in extortion under color or official right. The payment need not have been solicited, nor need the official act for which it is exchanged have been committed. The prosecution must establish that the extortion obstructed, delayed, or affected interstate or foreign commerce, but proof of a potential impact, even one that is not particularly severe, may be sufficient.

Hobbs Act violations are punishable by imprisonment for not more than 20 years and a fine of not more than $250,000. Hobbs Act offenses are RICO and money laundering predicates. It is a crime to attempt to commit a Hobbs Act offense. Moreover, the act has a separate conspiracy component, but recourse to prosecution of conspiracy under 18 U.S.C. 371 is an alternative. An offender may incur criminal liability under the misprision statute or as a principal or accessory before the fact to a violation of the Hobbs Act by another.

Obstruction of Investigations by Bribery (18 U.S.C. 1510(a))

Before Congress rewrote federal obstruction of justice law in 1982, §1510 covered the obstruction of federal criminal investigations by "misrepresentation, intimidation, or force or threats thereof" as well as by bribery. All that remains of the original proscription is the prohibition on obstruction by bribery:

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

Prosecutions under subsection 1510(a) have been more infrequent since the enactment of 1512 in 1982, perhaps because §1512 governs the obstruction of federal criminal investigations not only by corrupt persuasion such as bribery but also by intimidation, threat, deception, or physical force. Moreover, §1510 defines the federal investigators within its protection more narrowly than does the definition that applies to §1512 coverage. In addition, §1512 outlaws impeding communications relating to a violation of bail, parole, probation, or supervised release conditions, which §1510 does not. Like §1512 offenses, however, §1510 offenses are RICO and money laundering predicate offenses.

Obstruction of Justice by Destruction of Evidence

Other than subsection 1512(c), three federal statutes expressly outlaw the destruction of evidence in order to obstruct justice: 18 U.S.C. 1519 prohibits destruction of evidence in connection with federal investigation or bankruptcy proceedings; 18 U.S.C. 1520 prohibits destruction of corporate audit records; and 18 U.S.C. 2232(a) prohibits the destruction of property to prevent the government from searching or seizing it.

None of the three are RICO or money laundering predicate offenses. There are no explicit statements of extraterritorial jurisdiction for any of them, but the courts are likely to conclude that overseas violation of their provisions is subject to prosecution in this country. None of them feature an individual conspiracy component, but all of them are subject to general federal law governing conspiracy, principals, accessories after the fact, and misprision.

Obstruction of Investigations by Destruction of Evidence (18 U.S.C. 1519)

Where subsection 1512(c) condemns obstruction of federal proceedings by destruction of evidence, §1519 outlaws obstruction of federal investigations or bankruptcy proceedings by such means. It declares:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Although its "relation to or contemplation of" clause may admit to more than one construction, the section's elements might be displayed as follows:

I. Whoever

II. knowingly

III. A. alters,

B. destroys,

C. mutilates,

D. conceals,

E. covers up,

F. falsifies, or

G. makes a false entry in

IV. any

A. record,

B. document, or

C. tangible item

V. with the intent to

A. impede,

B. obstruct, or

C. influence

VI. A. the investigation

1. of any matter within the jurisdiction of any department or agency of the United States, or

2. of any case filed under title 11 (relating to bankruptcy), or

B. the proper administration

1. of any matter within the jurisdiction of any department or agency of the United States, or

2. of any case filed under title 11 (relating to bankruptcy), or

C. 1.a. in relation to or

b. in contemplation of

2. any such

a. matter or

b. case

shall be fined under this title, imprisoned not more than 20 years, or both.

Conviction does not require the government to prove that the defendant knew that he was obstructing a matter within the jurisdiction of a federal department or agency. It is fairly clear that the tangible item destroyed or disposed of in order to frustrate an investigation need not be a record or document or anything like either of them.

The legislative history of §1519 evidences a strong inclination to "close the loopholes" in federal obstruction law, but is not quite so clear on the issue of whether the offense would have an element of specific intent under all circumstances. Section 1519 was passed with an eye to the prosecution of the Arthur Andersen accounting firm, yet without the benefit the Supreme Court's later decision in the case. Characterized as the "anti-shredding" provision of the Sarbanes-Oxley Act, the section clearly reaches the destruction of evidence, but it is used with at least equal frequency to prosecute the falsification of evidence.

It seems clear that the conduct which §1519 proscribes is not limited to conduct that impedes a pending investigation ; the obstructed official consideration need be neither pending ("in contemplation of") nor take the form of an investigation ("investigation ... or proper administration of any matter").

Section 1519's language might suggest that it only reaches executive branch investigations and does not extend to congressional investigations or judicial investigations such as those conducted by a federal grand jury. The question whether §1519 applies to congressional and grand jury investigations might be the subject of some disagreement.

At one time, the general federal false statement statute forbid false statements in "any matter within the jurisdiction of any department or agency of the United States," 18 U.S.C. 1001 (1994 ed.). There, the phrase "any department or agency of the United States" referred only to executive branch entities, the Supreme Court said; it did not refer to judicial entities nor by implication to congressional entities. Congress then amended §1001 to cover false statements "in any matter within the jurisdiction of the executive, legislative, or judicial branches of the Government of the United States," a turn of phrase Congress elected not to use in §1519.

Beyond the bankruptcy matters to which the section explicitly refers, however, the case law suggests that, as long as a matter is within the investigative purview of a federal executive branch agency, the section extends to the obstruction of other judicial branch investigations such as those of the grand jury. The same logic might be used to bring destruction of evidence sought by Congress within the section's purview.

Destruction of Corporate Audit Records (18 U.S.C. 1520)

The Sarbanes-Oxley Act augmented §1519 with a very explicit prohibition on the destruction of corporate audit records in §1520. Section 1520 requires those who audit the issuers of securities to keep their records and work papers for 5 years. The penalty for violation of §1520 is imprisonment for not more than 10 years and/or a fine of not more than $250,000.

Destruction of Property to Prevent Seizure (18 U.S.C. 2232(a))

Section 2232(a) mentions neither proceedings nor investigations; it simply outlaws destruction of property in order to prevent the government from seizing it. The offense has three elements: (1) a person "authorized to search for or seize certain property"; (2) "the accused knowingly destroys or removes or attempts to destroy or remove the property subject to the authorized search or seizure"; and (3) "the destruction or removal of the property [is] for the purpose of preventing its seizure." Prosecution is apparently limited to those instances where the property is subject to seizure either with, or because of exigent or other circumstances without, a warrant at the time of its removal, destruction, or attempted destruction or removal. On the other hand, the section reaches both seizure for purposes of investigation and seizure for purposes of forfeiture. Section 2232(a) is closely related to 18 U.S.C. 1519, and individuals who destroy property to prevent its seizure by federal law enforcement officials may also find themselves charged or convicted with obstructing a federal investigation under §1519 based on the same misconduct. Section 2232(a) violations are punishable by imprisonment for not more than five years and/or a fine of not more than $250,000.

Obstruction of Justice by Deception

In addition to the obstruction of justice provisions of 18 U.S.C. 1503 and 1512, four other general statutes outlaw obstructing the government's business by deception. Three involve perjury: 18 U.S.C. 1623, which outlaws false swearing before federal courts and grand juries; 18 U.S.C. 1621, the older and more general prohibition that proscribes false swearing in federal official matters (judicial, legislative, or administrative); and 18 U.S.C. 1622, which condemns subornation, that is, inducing another to commit perjury. The fourth, 18 U.S.C. 1001, proscribes material false statements concerning any matter within the jurisdiction of a federal executive branch agency, and to a somewhat more limited extent within the jurisdiction of the federal courts or a congressional entity.

None of the four are RICO predicate offenses or money laundering predicate offenses. The laws relating to aiding and abetting, accessories after the fact, misprision, and conspiracy, however, apply to all four. Sections 1621 and 1623 state that their prohibitions apply regardless of whether the perjurious conduct occurs overseas or within this country. Section 1001 has no such explicit declaration, but has been held to have extraterritorial application nonetheless.

Perjury in a Judicial Context (18 U.S.C. 1623)

Congress enacted Section 1623 to avoid in relation to judicial proceedings some of the common law technicalities embodied in the more comprehensive perjury provisions found in Section 1621 and thus "to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." Unlike Section 1621, Section 1623 permits a conviction in the case of two mutually inconsistent declarations without requiring proof that one of them is false. It recognizes a limited recantation defense. It dispenses with the so-called two-witness rule. And, it employs a "knowing" mens rea standard rather than the more demanding "willfully" standard used in Section 1621.

Parsed into elements, Section 1623 declares that:

I. Whoever

II. a. under oath or

b. in any

i. declaration,

ii. certificate,

iii. verification, or

iv. statement

under penalty of perjury as permitted under [Section ]1746 of title 28, United States Code

III. in any proceeding before or ancillary to

a. any court or

b. grand jury of the United States

IV. knowingly

V. a. makes any false material declaration or

b. makes or uses any other information, including any

i. book,

ii. paper,

iii. document,

iv. record,

v. recording, or

vi. other material,

knowing the same to contain any false material declaration,

shall be fined under this title or imprisoned not more than five years, or both.

In most cases, the courts abbreviate their description of the elements and state in one form or another that to prove perjury the government must establish that the defendant (1) knowingly made a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary to any court or grand jury of the United States.

The allegedly perjurious declaration must be presented in a "proceeding before or ancillary to any court or grand jury of the United States." An interview in an attorney's office in preparation for a judicial hearing cannot be considered such an ancillary proceeding, but the phrase "proceedings ancillary to" court or grand jury proceedings does cover proceedings to take depositions in connection with civil litigation, as well as a variety of pretrial proceedings in criminal cases, including habeas proceedings, bail hearings, venue hearings, or suppression hearings.

The Supreme Court's observation that a statement that is misleading but literally true cannot support a conviction under Section 1621 because it is not false applies with equal force to perjury under Section 1623. Similarly, perjury cannot be the product of confusion, mistake, or faulty memory, but must be a statement that the defendant knows is false, although this requirement may be satisfied with evidence that the defendant was deliberately ignorant or willfully blind to the fact that the statement was false. On the other hand, "[a] question that is truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a finding of perjury, as it could never be said that one intended to answer such a question untruthfully." Yet ambiguity will be of no avail if the defendant understands the question and answers falsely nevertheless.

Materiality is perhaps the most nettlesome of perjury's elements. It is usually said that a statement is material "if it has a natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to whom it is addressed." This definition is not easily applied when the precise nature of the underlying inquiry remains somewhat undefined such as in grand jury proceedings or in depositions at the discovery stage of a civil suit. On the civil side, the lower federal courts appear divided between the view (1) that a statement in a deposition is material if a "truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit" and (2) that a statement is material "if the topic of the statement is discoverable and the false statement itself had a tendency to affect the outcome of the underlying civil suit for which the deposition was taken."

In the case of perjury before the grand jury, rather than articulate a single standard the courts have described several circumstances under which false testimony may be considered material. In any event, a statement is no less material because it did not or could not divert the decision maker.

The courts seem to have had less difficulty dealing with a materiality issue characterized as the perjury trap doctrine. The doctrine arises where a witness is called for the sole purpose of eliciting perjurious testimony from him. Under such circumstances it is said the tribunal has no valid purpose to which a perjurious statement could be considered material. The doctrine poses no bar to prosecution in most cases, however, since the government is usually able to identify some valid reason for the grand jury's inquiries.

Subsection 1623(c) permits a perjury conviction simply on the basis of two necessarily inconsistent material declarations rather than a showing that one of the two statements is false. Conviction does require a showing, however, that the two statements were made under oath; it is not enough to show that one was made under oath and the other was made in the form of an affidavit signed under penalty of perjury. Moreover, the statements must be so inherently contradictory that one of them of necessity must be false.

Some years ago, the Supreme Court declined to reverse an earlier ruling that "[t]he general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment." Since the two witness rule rests on the common law rather than on a constitutional foundation, it may be abrogated by statute without offending constitutional principles. Subsection 1623(e) permits a perjury conviction without compliance with this traditional two witness rule.

Most of the other subsections of Section 1623 are designed to overcome obstacles which the common law placed in the path of a successful perjury prosecution. Subsection 1623(d), in contrast, offers a defense unrecognized at common law. The defense is stated in fairly straightforward terms, "[w]here in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed." Although phrased in different terms, the courts seem to agree that repudiation of the false testimony must be specific and thorough. There is some disagreement whether a recanting defendant must be denied the defense if both the substantial impact and manifest exposure conditions have been met or if the defense must be denied if either condition exists. Most courts have concluded that the presence of either condition dooms the defense.

Early construction required that a defendant establish both that his false statement had not substantially affected the proceeding before his recantation and that it had not become manifest that his false statement would be exposed. One more recent appellate case, however, decided that the defense should be available to a witness who could show a want of either an intervening adverse impact or of likely exposure of his false statement. Even without the operation of subsection 1623(d), relatively contemporaneous corrections of earlier statements may negate any inference that the witness is knowingly presenting false testimony and thus preclude conviction for perjury.

Perjury Generally (18 U.S.C. 1621)

When Congress passed Section 1623, it did not repeal Section 1621 either explicitly or by implication; where its proscriptions overlap with those of Section 1623, the government is free to choose under which it will prosecute. Since Section 1623 frees prosecutors from many of the common law requirements of Section 1621, it is perhaps not surprising that they ordinarily elect to prosecute under Section 1623. Section 1623 does outlaw perjury under a wider range of circumstances than Section 1621; it prohibits perjury before official proceedings generally—both judicial and nonjudicial. Separated into its elements, the section provides that:

(1)

I. Whoever having taken an oath

II. before a competent tribunal, officer, or person,

III. in any case in which a law of the United States authorizes an oath to be administered,

IV. a. that he will

i. testify,

ii. declare,

iii. depose, or

iv, certify truly, or

b. that any written

i. testimony,

ii. declaration,

iii. deposition, or

iv. certificate

by him subscribed, is true,

V. willfully and contrary to such oath

VI. a. states or

b. subscribes

any material matter which he does not believe to be true; or

(2)

I. Whoever in any

a. declaration,

b. certificate,

c. verification, or

d. statement

under penalty of perjury as permitted under [Section ]1746 of title 28, United States Code,

II. willfully subscribes as true

III. any material matter

IV. which he does not believe to be true

is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

The courts generally favor an abbreviated encapsulation such as the one found in United States v. Dunnigan : "A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory."

Perjury is only that testimony which is false. Thus, testimony that is literally true, even if deceptively so, cannot be considered perjury for purposes of a prosecution under Section 1621. Moreover, Section 1621 requires compliance with "the two witness rule" to establish that a statement is false. Under the rule, "the uncorroborated oath of one witness is not sufficient to establish the falsity of the testimony of the accused as set forth in the indictment as perjury." Thus, conviction under Section 1621 requires that the government "establish the falsity of the statement alleged to have been made by the defendant under oath, by the testimony of two independent witnesses or one witness and corroborating circumstances." If the rule is to be satisfied with corroborative evidence, the evidence must be trustworthy and support the account of the single witness upon which the perjury prosecution is based.

The test for materiality under Section 1621 is whether the false statement "has a natural tendency to influence or [is] capable of influencing the decision-making body to which it [is] addressed."

Conviction under Section 1621 requires not only that the defendant knew his statement was false ("which he does not believe to be true"), but that his false statement is "willfully" presented. There is but scant authority on precisely what "willful" means in this context. The Supreme Court in dicta has indicated that willful perjury consists of " deliberate material falsification under oath." Other courts have referred to it as acting with an "intent to deceive" or as acting "intentionally."

Although a contemporaneous correction of a false statement may demonstrate the absence of the necessary willful intent to commit perjury, the crime is completed when the false statement is presented to the tribunal; without a statute such as that found in Section 1623, recantation is no defense, nor does it bar prosecution.

Subornation of Perjury (18 U.S.C. 1622)

Section 1622 outlaws procuring or inducing another to commit perjury: "Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned for not more than five years, or both," 18 U.S.C. 1622. The crime consists of two elements—(1) an act of perjury committed by another (2) induced or procured by the defendant. Perjury under either Section 1621 or Section 1623 will support a conviction for subornation under Section 1622, but proof of the commission of an act of perjury is a necessary element of subornation. Although the authorities are exceptionally sparse, it appears that to suborn one must know that the induced statement is false and that at least to suborn under Section 1621 one must also knowingly and willfully induce. Subornation is only infrequently prosecuted as such perhaps because of the ease with which it can now be prosecuted as an obstruction of justice under either 18 U.S.C. 1503 or 1512, which unlike Section 1622 do not insist upon suborner success as a prerequisite to prosecution.

False Statements (18 U.S.C. 1001)

The general false statement statute, 18 U.S.C. 1001, outlaws false statements, concealment, or false documentation in any matter within the jurisdiction of any of the three branches of the federal government, although it limits application in the case of Congress and the courts. More specifically it states:

I. Except as otherwise provided in this section,

II. whoever, in any matter within the jurisdiction of the executive,

legislative, or judicial branch of the Government of the

United States,

III. knowingly and willfully—

IV. a. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

b. makes any materially false, fictitious, or fraudulent statement or representation; or

c. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A [sexual abuse], 109B [sex offender registration], 110 [sexual exploitation], or 117 [transportation for illicit sexual purposes], or section 1591 [sex trafficking], then the term of imprisonment imposed under this section shall be not more than 8 years.

The courts' description of the elements will sometimes be couched in terms of the form of deception at hand—false statement, concealment, or false documentation. On other occasions the courts will simply treat concealment or false documentation as a form of false statement.

Section 1001 also imposes a limitation upon an offense that involves matters within the jurisdiction of either the judicial or legislative branch:

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate. 18 U.S.C. 1001(b),(c).

The defendant must establish his right to the benefits of Section 1001(b)'s judicial limitation exception. Section 1001(c) establishes additional elements for a false statement offense in a legislative context, which the government must establish.

A matter is within the jurisdiction of a federal entity when it involves a matter "confided to the authority of a federal agency or department ... A department or agency has jurisdiction, in this sense, when it has power to exercise authority in a particular situation. Understood in this way, the phrase 'within the jurisdiction' merely differentiates the official, authorized functions of an agency or department from matters peripheral to the business of that body." Several courts have held that the phrase contemplates coverage of false statements made to state, local, or private entities but relating to matters that involve federal funds or regulations. Subsection 1001(b) precludes application of prohibitions in Section 1001(a) to the statements, omissions, or documentation presented to the court by a party in judicial proceedings. This includes statements of indigence filed by a defendant seeking the appoint of counsel, or by a defendant for a probation officer's presentence report, but not statements made by one on supervised release to a parole officer.

Although the offense can only be committed "knowingly and willfully," the prosecution need not prove that the defendant knew that his conduct involved a "matter within the jurisdiction" of a federal entity nor that he intended to defraud a federal entity. It does, however, require the government to show the defendant knew or elected not to know that the statement, omission, or documentation was false and that the defendant presented it with the intent to deceive. The phrase "knowingly and willfully" refers to the circumstances under which the defendant made his statement, omitted a fact he was obliged to disclose, or included with his false documentation, that is, "that the defendant knew that his statement was false when he made it or—which amounts in law to the same thing—consciously disregarded or averted his eyes from the likely falsity."

Prosecution for a violation of Section 1001 requires proof of materiality, as does conviction for perjury, and the standard is the same: the statement must have a "natural tendency to influence, or be capable of influencing the decisionmaking body to which it is addressed." There is no need to show that the decision maker was in fact diverted or influenced.

Conviction for false statements or false documentation under Section 1001 also requires that the statements or documentation be false, that they not be true. And the same can be said of the response to a question that is so fundamentally ambiguous that the defendant's answer cannot be said to be knowingly false. On the other hand, unlike the perjury provision of Section 1623, "there is no safe harbor for recantation or correction of a prior false statement that violates [Section ]1001."

Prosecutions under subsection 1001(a)(1) for concealment, rather than false statement or false documentation, must also prove the existence of duty or legal obligation not to conceal.

Obstruction of Justice by "Tip-Off"

Although an individual who obstructs a federal investigation by tipping off the targets of the investigation is likely to incur liability either as a principal under 18 U.S.C. 2 or as an accessory after the fact under 18 U.S.C. 3, there are several federal anti-tip-off statutes like §1510, which prohibits bank officials from notifying suspects that they are under investigation, and which imposes a similar restriction on insurance company officers and employees.

Subsection 2511(1)(e) proscribes tipping off the targets of federal or state law enforcement wiretaps. A similar prohibition appears in 18 U.S.C. 2232, which also outlaws improper notification in the case of search warrants or Foreign Intelligence Surveillance Act orders. All three offenses are punishable by imprisonment for not more than five years.

Specific Obstructions

A number of federal statutes proscribe obstruction of specific types of investigations or proceedings in general terms. Their prohibitions may be breached by bribery, deception, violence, or threat; although the limited case law suggests that most are more likely to be violated by corruption or deception than violence. Numbered among them are 18 U.S.C. 1511 that outlaws obstruction of state illegal gambling business investigations; 18 U.S.C. 1516 that bans obstruction of a federal audit of an activity involving more than $100,000 in federal funds; 18 U.S.C. 1517 that prohibits obstruction of the federal audit of a financial institution; 18 U.S.C. 1518 that condemns obstruction of federal criminal investigation of possible health care offenses; 18 U.S.C. 118 that proscribes obstructing federal protection of foreign diplomats and other dignitaries in this country and of personnel in federal facilities overseas; and 18 U.S.C. 1521 that proscribes retaliating against federal judges, officers, or employees by subjecting their property to false liens. The penalty for violating each of the sections other than §118 or §1521 is imprisonment for not more than five years. Section 1521 offenses are punishable by imprisonment for not more than 10 years, and §118 offenses are punishable by imprisonment for not more than one year.

Several of the human trafficking and sex trafficking statutes found in chapter 77 of title 18 of the United States Code proscribe obstructing an investigation into the possible violation of their provisions. In most instances, obstruction and the underlying offense carry the same penalty.

Influencing Jurors by Writing (18 U.S.C. 1504)

It is a federal crime to communicate in writing with any member of federal grand or trial jury in an attempt to influence the performance of his or her duties. Violations are punishable by imprisonment for not more than 6 months and/or a fine of not more than $5,000. The section appears to have been prosecuted only infrequently, perhaps in part because of the availability of prosecution under other statutes such as contempt or obstruction of justice.

Although the statute suggests that the section does not preclude written requests to appear before the grand jury ("nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury"), the cases indicate the exception is limited to communications forwarded through the court or the prosecutor or to those requested by the grand jury itself.

On a practical note, a federal court in Southern District of New York recently explained that, "jury tampering is generally prosecuted under the statute prohibiting influencing a juror generally, 18 U.S.C. 1503, or through contempt statutes." Faced with one of the few exceptions, the court declared that:

Based upon the plain meaning of the text of 18 U.S.C. 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror's duties by means of written communication made in relation to a specific case pending before that juror in relation to a point in dispute between the parties before that juror .

Obstruction of Justice as a Sentencing Factor (U.S.S.G. §3C1.1)

Regardless of the offense for which an individual is convicted, his sentence may be enhanced as a consequence of any obstruction of justice for which he is responsible, if committed during the course of the investigation, prosecution, or sentencing for the offense of his conviction. The enhancement may result in an increase in his term of imprisonment by as much as 4 years. The enhancement is the product of the influence of §3C1.1 of the United States Sentencing Guidelines.

Federal sentencing begins with, and is greatly influenced by, the calculation of the applicable sentencing range under the Sentencing Guidelines. The Guidelines assign every federal crime a base offense level to which they add levels for various aggravating factors. Obstruction of justice is one of those factors. Each of the final 43 offense levels is assigned to one of six sentencing ranges, depending on the extent of the defendant's past crime history. For example, a final offense level of 15 means a sentencing range of from 18 to 24 months in prison for a first time offender (criminal history category I) and from 41 to 51 months for a defendant with a very extensive criminal record (criminal history category VI). Two levels higher, at a final offense level of 17, the range for first time offenders is 24 to 30 months; and 51 to 63 months for the defendant with a very extensive prior record. The impact of a 2-level increase spans from no impact at the lowest final offense levels to a difference of an additional 68 months at the highest levels.

Section 3C1.1 instructs sentencing courts to add 2 offense levels in the case of an obstruction of justice:

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (Bi) a closely related offense, increase the offense level by 2 levels. U.S.S.G. §3C1.1.

The accompanying commentary explains that the section "is not intended to punish a defendant for the exercise of a constitutional right." More specifically, a "defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision." Early on, the Supreme Court made it clear that an individual's sentence might be enhanced under U.S.S.G §3C1.1, if he committed perjury during the course of his trial. Moreover, the examples provided elsewhere in the section's commentary and the cases applying the section confirm that it reaches perjurious statements in a number of judicial contexts and to false statements in a number of others. The examples in the section's commentary cover conduct:

(B) committing, suborning, or attempting to suborn perjury, including during the course of a civil proceeding if such perjury pertains to conduct that forms the basis of the offense of conviction;

(F) providing materially false information to a judge or magistrate;

(G) providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense;

(H) providing materially false information to a probation officer in respect to a presentence or other investigation for the court; [and]

(I) other conduct prohibited by obstruction of justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§1510, 1511).

The courts have concluded that an enhancement under the section is appropriate, for instance, when a defendant has (1) given preposterous or outrageous, perjurious testimony during his own trial; (2) given perjurious testimony at his suppression hearing; (3) given perjurious, exculpatory testimony at the separate trial of his girlfriend; (4) made false statements in connection with a probation officer's bail report; (5) made false statements to the court in an attempt to change his guilty plea; (6) made false statements to federal investigators; and (7) made false statements to state investigators relating to conduct for which the defendant was ultimately convicted.

When perjury provides the basis for an enhancement under the section, the court must find that the defendant willfully testified falsely with respect to a material matter. When based upon a false statement not under oath, the statement must still be material, that is, it must "tend to influence or affect the issue under determination." Even then, false identification at the time of arrest only warrants a sentencing enhancement under the section when the deception significantly hinders the investigation or prosecution.

The commentary accompanying the section also states that the enhancement may be warranted when the defendant threatens or otherwise tampers with a victim, witness, or juror; submits false documentations; destroys evidence; flees (in some cases); or engages in any other conduct that constitutes an obstruction of justice under the criminal law provisions of title 18 of the United States Code. By definition, however, the enhancement is only available when the obstruction occurs "during the course of the investigation, prosecution, or sentencing of the instance offense."