Obstruction of Justice
Obstruction of justice is criminalized under the federal criminal code by a combination of many statutes that pertain to different forms of interference with the judicial system. Section 1503, though entitled “Influencing or Injuring Officer or Juror Generally,” is known as the “omnibus” obstruction statute because it criminalizes “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”[1]
Section 1503 applies only to federal judicial and grand jury proceedings. Other statutes criminalizing obstruction of justice include:
– Section 1505, which applies to obstruction of proceedings before departments, agencies or committees,
– Section 1510, which refers to obstruction of criminal investigations;
– Section 1512, which prohibits witness tampering, along with threatening victims and informants;
– Section 1519, which criminalizes destruction, alteration or falsification of records in federal investigations; and
– Section 1520, which prohibits destruction of corporate audit records.
Sections 1503 and 1505, the garden variety obstruction of justice statutes, require a pending proceeding, that the defendant knew about the proceeding and that the defendant intended to obstruct or impede the proceedings. The defendant must know that his actions would have a “natural and probable” effect of interfering with the administration of justice.[2] Still, note that the defendant need not actually obstruct justice; the mere attempt to do so constitutes the crime. If, for example, a witness intimidation attempt fails, and the witness rebuffs the attempt to intimidate her, that doesn’t absolve the person who made the attempt of the crime of obstruction of justice.
Obstruction of justice requires an intent level of at least “knowingly,” meaning that the defendant must be conscious of wrongdoing.[3] The Supreme Court illustrated this point in the Arthur Anderson case, wherein the accounting firm, which was auditor for Enron at the time of its fraudulent behavior that led to its shocking failure in 2000,[4] was initially convicted of obstruction under Section 1512. The basis of the conviction was the firm’s telling its employees to destroy Enron documents, purportedly to comply with its document security policy.
The trial court instructed the jury that the Anderson firm could be convicted even if its executives honestly and sincerely believed its conduct was lawful. The Supreme Court reversed, ruling this an improper instruction. The Court observed that the jury instructions also “diluted the meaning of “corruptly” by telling the jury to convict if it found the firm intended, by suggesting that employees enforce a document retention policy, to “subvert, undermine, or impede” governmental factfinding.” Since “impeding” could imply innocently “getting in the way” of the government investigation, it was not a proper way to phrase the crime of obstruction of justice. The Court also observed that “if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding… he lacks the requisite intent to obstruct.”
The Sarbannes-Oxley Act of 2002 broadened the scope of obstruction of justice with regard to covering up corporate documents, partly in response to a series of Enron-like scandals in 2000 and 2001.[5] The Act added to subsection (c) to Section 1512, making it a crime to “alter, destroy, mutilate or conceal a record, document, or other object… with the intent to impair the object’s integrity or availability for use in an official proceeding.” The Act also established Section 1519 to criminalize destruction, alteration or falsification of records in federal investigations. In fact, in 2015, a divided Supreme Court refused to allow these Sarbannes-Oxley provisions to be used to convict a fisherman for throwing illegally caught fish overboard to avoid prosecution. The Court observed that the Act clearly criminalized the destruction of records and documents, not physical evidence such as fish, Justice Alito observing: “Who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a ‘record’ or ‘document,’ said ‘crocodile?”[6]
Note, though, that even when the Sarbannes-Oxley provisions don’t apply, the other obstruction sections might. In United States v. Lundwall, the defendant destroyed documents that were sought during discovery in a civil lawsuit for race discrimination. The Southern District of New York federal court held that “omnibus” clause of Section 1503 was “broad enough to cover any act committed corruptly, in an endeavor to impede or obstruct justice,” even in civil cases.[7]
Witness Tampering
Section 1512 punishes witness tampering. The statute covers killing, intimidating, threatening and harassing witnesses to try to impede their cooperation of evidentiary value.[8]
As in the case of obstruction, the conduct need not actually dissuade the witness from cooperating. It is sufficient that he attempts to harass or threaten. Thus, when the defendant threatened witnesses who had, unbeknownst to the defendant, already testified, the threat “your asses belong to Joe” (referring to the person on trial at the time) was sufficient for a conviction.[9]
Precisely what constitutes intimidation or harassment is, of course, at the crux of many Section 1512 cases. Case law has allowed a fairly broad view of what constitutes witness tampering.
In United States v. Arnold, the Seventh Circuit upheld a tampering conviction where targets of an investigation told a potential grand jury witness that, if he refused to testify, they would “take care of his expenses, provide an attorney, forgive his debt, visit him in jail if he were imprisoned for remaining silent and provide him with spending money while he was incarcerated.” They also tried to convince him not to testify by saying that the government would “throw you to the street” and that it was “only trying to use” him. They also gave him advice on how to try to get out of testifying.[10]
In United States v. Cruzado-Laureano, an obstruction conviction was upheld even when the defendant urged witnesses to “tell the truth.” Because the defendant had made it plainly known to the witness that his assertion of what the “truth” was included several “facts” that were grossly misleading or incorrect, even encouraging witnesses to tell this “truth” could be impeding the witness. The defendant has also contacted the witness many times and interfered with his business, a pattern that the jury was entitled to infer was for the purpose of witness tampering.[11]
In United States v. Veal, the 11th Circuit held that false statements to law enforcement officials to throw off their investigations could also constitute witness tampering. Though the defendants argued that witness tampering refers only to people who “have relevant information regarding the possible commission of a federal crime,” the court rejected this interpretation. The court observed that as long as the statements to the investigators have the “prescribed federal nexus with federal agencies and judges,” steps to impede them is tampering under Section 1512.[12]
In United States v. Lester, the Ninth Circuit even sustained a conviction for obstruction based on the defendant’s paying for a witness’ hotel in another city so that the witness would not be in court to testify. This allowed the jury to infer that the defendant bribed the witness by paying for his trip, constituting witness tampering.[13]
Note that federal law excludes the providing of “bona-fide legal representation” from obstruction of justice. So, advising a client not to testify or even not to cooperate with police is not criminal. Still, that protection did not extent to where the attorney used his position to help intimidate witnesses on orders from an organized crime boss. The First Circuit observed that where the “lawyer has purposefully acted as an advisor to third-party criminals and as a participant in the illegal plot which they have hatched, that he has served knowingly and willingly as a go-between linking the conspirators to his nominal client, that he has performed functions apart from the traditional chores of a lawyer and that he has done all of this with the corrupt aim of frustrating a federal grand jury on its appointed rounds, then he cannot hide behind his law degree.”[14]
Bribery
Section 201 of the federal criminal code makes it a felony to give “anything of value” to a public official to influence an official act or to assist in defrauding the government, or to a witness before any court to testify or to refrain from testifying.[15] Like obstruction, bribery requires only the attempt to influence and applies even if the federal official is not actually influenced. Like lying to federal officials, bribery is a specific intent crime.
Bribery requires some sort of quid pro quo. The gift or payment must be given with the specific intent to be in “exchange for an official act.”[16] It is, of course, possible for the two parties to the transaction to have different intents – the money-giver may have the intent to bribe the official, while the official has no intention of being influenced. In such case, only the party with the requisite intent would be guilty under Section 201.
“Public official” includes all federal public officials, including anyone acting on behalf of the government. But it also includes anyone who “occupies a position of public trust with official federal responsibilities,” even if she does not occupy a federal position but was only delegated authority. In Dixson v. United States, the Supreme Court applied the statute to a “community-based social service organization” designated by the city of Peoria, IL, to be in charge of administering a block of federal grant funds. Although they were not federal employees, they were, in this capacity, considered public officials.[17]
“Official act” was explained by the Supreme Court to mean two elements. First, there must be a matter that may be brought before a public official that is “specific and focused” and involves the “formal exercise of governmental power,” such as a lawsuit, administrative decision or a hearing. Second, there must be some decision or action on the question or matter.[18] Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an official act.[19] Merely expressing support for a position is not an official act unless the public official intends to pressure or advise another official. [20]
It is not necessary for the official to have the power to complete the contemplated act for Section 201 to apply. A bribe given in the mistaken belief that the official has some office or power is still a bribe under the statute.[21]
The statute also enumerates a lesser offense of giving “gratuities,” which punishes giving or receiving anything of “value” for the discharge of an official duty or official act. A gratuity does not require intent to influence and includes gifts given after the act has been completed. There must, however, be a link between the thing of value and the official act. Token or ceremonial gifts to officials based on their positions and only loosely related to their official actions is not criminal. The Supreme Court observed that the bribery statute was not meant to be a broad “prohibition upon gift giving” to federal officials.[22]
The statute also requires the provision of a thing of “value” to influence the official act. Value is broadly construed, and focuses on the “subjective value defendant places on items received.” For example, giving a loan, even if repaid with interest, could be considered a bribe for purposes of Section 201.[23] A Congressman receiving a round-trip air transportation from Washington to Pennsylvania in exchange for official acts was also considered bribery under Section 201.[24]
The government need not necessarily prove the precise value of the item given. That the item or service had some value was all that was necessary. Thus, assistance in transferring funds was considered a thing of “value” even if its value could not be quantified.[25]
Moreover, the item doesn’t actually have to have value. The defendant just needs to believe that it has value. Thus, in United States v. Williams, when undercover agents engaging in a sting operation offered a share of a fictitious venture in exchange for official acts, which the defendant, a US Senator, accepted, a conviction for bribery could be sustained even though there was no venture and thus no actual value in the thing offered.[26]
Finally, it is unnecessary to show that the defendant had the power to achieve the desired result or wield the influence anticipated by the bribe. It is sufficient that the “act contemplated be within scope of official conduct of officer involved; no proof need be made of exact duties and authority of officer.”[27] It is even “immaterial” that the recipient’s position is “ministerial or subordinate” or that “he lacks authority to perform act to benefit the donor.”[28]
Federal Program Bribery
Section 666 of the federal criminal code prohibits any government agent (federal, state, local or even tribal) from accepting anything valued at $5,000 or more in connection with the administration of a federal program, when the giver receives benefits totaling $10,000 in a year. This crime carries a maximum sentence of 10 years in prison.[29]
The government need not show that federal funds were involved in the bribery transaction. Thus, when a county sheriff accepted money and other goods to allow visitors to a prisoner in a county jail whose operations were financed with federal funds, Section 666 applied, even though the federal funds received by the jail administration had no connection to the bribe.[30]
“Federal program,” in this context, is quite a broad term. It includes virtually everything financed (even in part) with federal money. This has been held to include payments of dues to the United Nations[31] and police departments receiving federal aid.[32] However, it does not include payments by the government to independent contractors working on government projects, as those are payments for services, not government “benefits.” So, for example, a scheme to steal helicopter parts from a company building helicopters for the federal government was not considered federal program bribery under Section 666.[33]
The violation occurs at the time of the payment and depends on the facts as they existed at that time. So, when city officials who misapplied city funds (in programs assisted by federal money), had the city council ratify the payments by retroactively approving the application of the funds, this was NOT a defense under Section 666. Conviction under 666 turned on the intent at the time the payments were made.[34]
The Hobbs Act
Finally, the Hobbs Act, passed in 1946 to combat racketeering and extortion, criminalizes obstructing interstate commerce through robbery, extortion or threats of physical violence.[35] While, unlike the bribery statutes, this law was not aimed solely at government corruption, it is a counterpart to corruption laws because it aims to stop interference with commerce just as bribery statutes aim to stop interference with government functioning. Also, the extortion component of the statute applies only when the threats are made “under color of official right,” which means by a government official using government power.
In Evans v. United States, the defendant, an elected member of the Board of Commissioners of DeKalb County, GA, was convicted under §1951 after taking $8,000 from an undercover officer posing as a real estate developer. Though it could not be shown that the defendant had demanded the payment, the Supreme Court ruled that “an affirmative act of inducement by a public official, such as a demand, is not a necessary element of the offense of extortion “under color of official right” prohibited by the Hobbs Act.” Rather, the “coercive element is provided by the public office itself” when a public official accepts a bribe implicitly in exchange for an exercise of official power.[36]
In our final module, we’ll turn to RICO, the federal racketeering statute, which is one of the most all-encompassing federal criminal statutes aimed at crime, and organized crime in particular.
[1] 18 USC § 1503
[2] United States v. Aguilar, 515 U.S. 593 (1995)
[3] Arthur Andersen LLP v. United States,544 U.S. 696, 125 S. Ct. 2129 (2005)
[4] https://www.investopedia.com/updates/enron-scandal-summary/
[5] https://www.nytimes.com/2017/05/18/business/dealbook/trump-obstruction-justice-prove.html
[6] https://www.latimes.com/business/la-fi-supreme-court-fish-20150226-story.html
[7] United States v. Lundwall, 1 F. Supp. 2d 249 (S.D.N.Y. 1998)
[8] 18 USC § 1512
[9] United States v. Wilson, 796 F.2d 55 (4th Cir. 1986)
[10] United States v. Arnold, 773 F.2d 823 (7th Cir. 1985)
[11] United States v. Cruzado-Laureano, 404 F.3d 470 (1st Cir. 2005)
[12] United States v. Veal, 153 F.3d 1233 (11th Cir. 1998)
[13] United States v. Lester, 749 F.2d 1288 (9th Cir. 1984)
[14] United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987)
[15] 18 USC § 201
[16] United States v. Sun-Diamond Growers,526 U.S. 398, 404-05 (1999)
[17] Dixson v. United States, 465 U.S. 482, 496 (1984)
[18] McDonnell v. United States, 136 S. Ct. 2355 (2016)
[19] https://www.law.columbia.edu/sites/default/files/microsites/public-integrity/a_guide_to_commonly_used_federal_statutes_in_public_corruption_cases.pdf
[20] https://www.law.columbia.edu/sites/default/files/microsites/public-integrity/a_guide_to_commonly_used_federal_statutes_in_public_corruption_cases.pdf
[21] United States v. Arroyo, 581 F.2d 649 (7th Cir. 1978)
[22] United States v. Sun-Diamond Growers,526 U.S. 398, 119 S. Ct. 1402 (1999)
[23] United States v. Gorman, 807 F.2d 1299 (6th Cir. 1986)
[24] United States v. McDade, 28 F.3d 283 (3d Cir. 1994)
[25] United States v. Rasco, 853 F.2d 501 (7th Cir. 1988)
[26] United States v. Williams, 705 F.2d 603 (2d Cir. 1983)
[27] Schneider v. United States, 192 F.2d 498 (9th Cir. 1951)
[28] United States v. Evans, 572 F.2d 455 (5th Cir. 1978)
[29] 18 USC § 666
[30] Salinas v. United States, 522 U.S. 52, 118 S. Ct. 469 (1997)
[31] United States v. Bahel, 662 F.3d 610 (2d Cir. 2011)
[32] United States v. Robinson, 663 F.3d 265 (7th Cir. 2011)
[33] United States v. Stewart, 727 F. Supp. 1068 (N.D. Tex. 1989)
[34] United States v. De La Cruz, 469 F.3d 1064 (7th Cir. 2006)
[35] 18 USC § 1951
[36] Evans v. United States, 504 U.S. 255, 112 S. Ct. 1881 (1992)