Obstruction of Justice Under Federal Law: A Review of Some of the Elements

CRS Report for Congress
Obstruction of Justice Under Federal Law:
A Review of Some of the Elements
October 5, 1998
Charles Doyle
Senior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT
This is a look at some of the elements and caselaw of the general federal obstruction of
justice statutes, 18 U.S.C. 1503, 1505, 1512.

Obstruction of Justice Under Federal Law:
A Review of Some of the Elements
Summary
This report focuses on selected aspects of the general obstruction of justice
provisions found in 18 U.S.C. 1503, 1505, and 1512. Section 1503 prohibits
obstruction of pending federal judicial proceedings; section 1505 outlaws obstruction
of pending administrative and Congressional proceedings; and section 1512 bans
witness tampering with the intent to obstruct federal judicial, administrative, or
Congressional proceedings.
Section 1503 condemns obstructing pending judicial proceedings under any of
four kinds of interference. Three explicitly address interfering with federal jurors or
court officials; the fourth, interference with the due administration of justice. The
courts often observe that to convict under this omnibus clause the government must
prove beyond a reasonable doubt: (1) that there was a pending judicial proceeding,
(2) that the defendant knew this proceeding was pending, and (3) that the defendant
then corruptly endeavored to influence, obstruct, or impede the due administration
of justice.
Section 1505 outlaws interfering with Justice Department civil investigative
demands issued in antitrust cases, but deals primarily with obstructing Congressional
and federal administrative proceedings. Prosecutions under section 1505 are
relatively few, and most of these arise as obstruction of administrative proceedings.
The crime of obstruction of [such] proceedings has three essential elements. First,
there must be a proceeding pending before a department or agency of the United
States. Second, the defendant must be aware of the pending proceeding. Third, the
defendant must have intentionally endeavored corruptly to influence, obstruct or
impede the pending proceeding.
Section 1512 forbids murdering (18 U.S.C. 1512(a)), harassing (18 U.S.C.
1512(c)), or otherwise tampering (18 U.S.C. 1512(b)) with federal witnesses in order
to prevent them from reporting misconduct to federal authorities, appearing as
witnesses in federal proceedings, or producing evidence at federal proceedings.
Although the murder and harassment subsections are not insignificant, the heart of
the section is the omnibus subsection, subsection 1512(b). It outlaws (1) knowingly,
(2) using one of the prohibited forms of persuasion, (3) with the intent to prevent a
witness's testimony or physical evidence from being presented at official federal
proceedings or with the intent to prevent a witness from reporting evidence of a
crime to federal authorities.

Contents
Introduction ..................................................1
Obstruction of Federal Courts (18 U.S.C. 1503)......................1
Obstruction of Congressional and Administrative Proceedings
(18 U.S.C. 1805)..........................................5
Witness Tampering (18 U.S.C. 1512)..............................8
Knowingly ..............................................11
Corrupt Persuasion........................................12
Guilty Intent.............................................13
Defenses ................................................14

Obstruction of Justice Under Federal Law:
A Review of Some of the Elements
Introduction
Blackstone lists some of the conduct we now know as obstruction of justice
among the "[m]isprisions . . . generally denomiated contempts or high misdemeanor"
and specifically notes that "to endeavour to dissuade a witness from giving evidence;
to disclose an examination before the privy council; or, to advise a prisoner to stand

mute; (all of which are impediments of justice) are high misprisions, and contempts¹
of the king's courts, and punishable by fine and imprisonment."
Although in a given case the same misconduct may be punishable under other²
federal statutes — some like 18 U.S.C. 1001 equally broad and others like 18 U.S.C.
1516³ more narrowly drawn, this report focuses on selected aspects of the general
obstruction of justice provisions found in 18 U.S.C. 1503, 1505, and 1512.⁴
Section 1503 prohibits obstruction of pending federal judicial proceedings;
section 1505 outlaws obstruction of pending federal administrative and
Congressional proceedings; and section 1512 bans witness tampering with the intent
to obstruct federal judicial, administrative, or Congressional proceedings.
Obstruction of Federal Courts (18 U.S.C. 1503)
Section 1503 condemns obstructing pending judicial proceedings by means of
any of four methods. Three explicitly address interfering with federal jurors or court⁵
officials; the fourth, interference with the due administration of justice:
I. Whoever

¹ IV B^LACKSTONE,C^O^M^M^E^N^T^ARI^E^{S ON THE}L^{AWS OF}E^NGLAND 121, 126
(1769)(transliteration supplied).
² 18 U.S.C. 1001 prohibits material false statements in any matter within the jurisdiction of
an agency or department of the United States, which under some circumstances may include
false statements within the jurisdiction of the judicial and legislative branches.
³ 18 U.S.C. 1516 outlaws obstructing certain federal audits.
⁴ The witness retaliation provisions of 18 U.S.C. 1513 are also beyond the scope of this
report.
⁵ "(a) Whoever corruptly, or by threats or force, or by any threatening letter or
communication, endeavors to influence, intimidate, or impede any grand or petit juror, or
officer in or of any court of the United States, or officer who may be serving at any
examination or other proceeding before any United States magistrate judge or other
committing magistrate, in the discharge of his duty, or injures any such grand or petit juror
in his person or property on account of any verdict or indictment assented to by him, or on
account of his being or having been such juror, or injures any such officer, magistrate judge,
or other committing magistrate in his person or property on account of the performance of
his official duties . . . shall be punished as provided in subsection (b). If the offense under
this section occurs in connection with a trial of a criminal case, and the act in violation of
this section involves the threat of physical force or physical force, the maximum term of
imprisonment which may be imposed for the offense shall be the higher of that otherwise
provided by law or the maximum term that could have been imposed for any offense charged
in such case.
"(b) The punishment for an offense under this section is — (1) in the case of a killing,
the punishment provided in sections 1111 and 1112; (2) in the case of an attempted killing,
or a case in which the offense was committed against a petit juror and in which a class A or
B felony was charged, imprisonment for not more than 20 years, a fine under this title, or
both; and (3) in any other case, imprisonment for not more than 10 years, a fine under this
title, or both," 18 U.S.C. 1503.

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), 18 U.S.C. 1503(a).
The courts often observe that to convict under this omnibus clause the
government must prove beyond a reasonable doubt: "(1) that there was a pending
judicial proceeding, (2) that the defendant knew this proceeding was pending, and
(3) that the defendant then corruptly endeavored to influence, obstruct, or impede the⁶
due administration of justice."
There is little dispute over the demands of the first two elements. The Supreme
Court has maintained for over a century that "a person is not sufficiently charged
with obstructing or impeding the due administration of justice in a court unless it
appears that he knew or had notice that justice was being administered in such⁷
court."
Marking the outer boundaries of "corruptly endeavoring to influence, obstruct
or impede" has proven more challenging. Several circuits have held that to act
"corruptly" within the meaning of the omnibus clause requires that the defendant
have acted with the intent to influence, obstruct, or impede the proceeding in⁸
question. The combination of this somewhat relaxed standard coupled with the the
fact that an offender need only "endeavor" to obstruct gives the clause a potential

⁶ United States v. Monus, 128 F.3d 376, 387 (6th Cir. 1997); see also, United States v.
Cueto, 151 F.3d 620, 633 (7th Cir. 1998); United States v. Brenson, 104 F.3d 1267, 1275
(11th Cir. 1997); United States v. Wood, 6 F.3d 692, 695 (10th Cir. 1993).
⁷ United States v. Aguilar, 515 U.S. 593, 599 (1995), quoting, Pettibone v. United States,

148 U.S. 197, 206 (1893).

⁸ United States v. Mullins, 22 F.3d 1365, 1369 (6th Cir. 1994); United States v. Littleton, 76
F.3d 614, 619 (4th Cir. 1996); United States v. Russo, 104 F.3d 431, 435-36 (D.C.Cir.
1997)("Russo's actual point thus must be that, under §1503, his lying to a grand jury with
intent to obstruct its investigation did not amount to a `corrupt' obstruction of the due
administration of justice. On the face of it, this is a surprising proposition. It supposes that
`corrupt' has nothing to do with honesty, that a witness whose aim is to impede a grand jury
investigation by distorting the truth is not acting `corruptly.' It also entails some odd
consequences. For instance, how can it be that concealing or destroying documents
requested by a grand jury subpoena duces tecum may violate §1503, while lying under oath
about the location of the documents cannot? . . . Anyone who intentionally lies to a grand
jury is on notice that he may be corruptly obstructing the grand jury's investigation")(Russo
also found inapplicable to §1503 the Poindexter vagueness concern with respect to §1505
discussed below).

sweep that the courts have sought to confine by requiring a demonstration of clear
nexus between the obstructing conduct and the target proceedings. The nexus
requirement is alternatively and more regularly cast as a requirement that the
misconduct have the "natural and probable effect of interfering with the due⁹
administration of justice." There is no requirement, however, that the defendant's
endeavors succeed¹⁰ or even that they were capable of succeeding (as long as the
accused was unaware of the futility of his efforts to obstruct).¹¹
The courts are at odds over whether the due administration of justice in section

1503 may be obstructed by corrupting a witness before a federal judicial proceeding.

The Second Circuit believes that when Congress enacted the more specific witness
tampering and witness retaliation provisions of 18 U.S.C. 1512 and 1513 it intended
to remove those crimes from the omnibus clause's inventory of proscriptions.¹² The¹³
other circuits, to the extent they have addressed the issue, disagree.
The specific kinds of misconduct which under the appropriate circumstances
may provide the basis for a prosecution under the omnibus clause include:
- creation of false documents to be presented in evidence¹⁴
- destruction of documentary evidence¹⁵

⁹ United States v. Collis, 128 F.3d 313, 318 (6th Cir. 1997)("The 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 the `natural and
probable effect' of interfering with the due administration of justice"), quoting United States
v. Aguilar, 515 U.S. at 599; see also, United States v. Furkin, 119 F.3d 1276, 1281 (7th Cir.

1997).

¹⁰ United States v. Aguilar, 515 U.S. at 599, 600; United States v. Muhammad, 120 F.3d

688, 695 (7th Cir. 1997); United States v. Muhammad, 125 F.3d 608, 620 (8th Cir. 1997).

¹¹ United States v. Tackett, 113 F.3d 603, 611 (6th Cir. 1997)("Although the omnibus clause
of §1503 requires that a defendant's actions were intended to obstruct an actual judicial
proceeding, the government need not prove that the actions had their intended effect.
Furthermore, an endeavor to obstruct justice violates the law even if, unbeknownst to the
defendant, the plan is doomed to failure from the start"), citing, United States v. Osborn, 385
U.S. 323, 333 (1966).
¹² United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991).
¹³ United States v. Tackett, 113 F.3d at 607 ("The Second Circuit has held that the enactment
of new witness protection laws in 1982 and 1988 means that the government must prosecute
witness tampering under the new law, 18 U.S.C. §1512, rather than under §1503. The other
circuits that have addressed the issue have reached the opposite conclusion. See United
States v. Malone, 71 F.3d 645, 659 (7th Cir. 1995)(noting that Fourth, Ninth and Eleventh
Circuits have held that the omnibus clause of §1503 continues to cover witness tampering;
United States v. Kenny, 973 F.2d 339, 342-43 (4th Cir. 1992)(same for First, Fifth, Eighth
and Ninth Circuits"); see also United States v. Ladum, 141 F.3d 1328, 1337-338 (9th Cir.

1998).

¹⁴ United States v. Chihak, 137 F.3d 252 (5th Cir. 1998).
¹⁵ United States v. Monus, 128 F.3d 376 (6th Cir. 1997).

- submission of a forged letter during a probation revocation hearing¹⁶
- instructing a subordinate to conceal evidence¹⁷
- a civil trial juror's solicitation of a bribe¹⁸
- pressuring bar owners to backdate video machine leases to conceal gambling¹⁹
income
- encouraging grand jury witnesses to falsify records and commit perjury²⁰
- promising to bribe a trial judge (even absent an intent to offer the bribe)²¹
- grand juror's disclosing matters occurring before the grand jury²²
- backdating a contract to be submitted to the grand jury²³
- instructing others to alter records in anticipation of a grand jury subpoena²⁴
- informant's providing defense attorney with a false statement that might be²⁵
used to impeach the informant's contrary testimony at trial.

¹⁶ United States v. Collis, 128 F.3d 313 (6th Cir. 1997).
¹⁷ United States v. Lefkowitz, 125 F.3d 608 (8th Cir. 1997).
¹⁸ United States v. Muhammad, 120 F.3d 688 (7th Cir. 1997).
¹⁹ United States v. Furkin, 119 F.3d 1276 (7th Cir. 1997).
²⁰ United States v. Tackett, 113 F.3d 603 (6th Cir. 1997).
²¹ United States v. Atkin, 107 F.3d 1213 (6th Cir. 1997).
²² United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997).
²³ United States v. Jespersen, 65 F.3d 993 (2d Cir. 1995).
²⁴ United States v. Mullins, 22 F.3d 1365 (6th Cir. 1994).
²⁵ United States v. Barfield, 999 F.2d 1520 (11th Cir. 1993).

Obstruction of Congressional And Administrative Proceedings
(18 U.S.C. 1505)
Section 1505 outlaws interfering with Justice Department civil investigative²⁶
demands issued in antitrust cases, but deals primarily with obstructing
Congressional and federal administrative proceedings:
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 five years, or both, 18
U.S.C. 1505.
Prosecutions under section 1505 are relatively few, 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."²⁷

²⁶ "Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in
part, with any civil investigative demand duly and properly made under the Antitrust Civil
Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers
up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers
to written interrogatories, or oral testimony, which is the subject of such demand; or attempts
to do so or solicits another to do so . . . Shall be fined under this title or imprisoned not more
than five years, or both," 18 U.S.C. 1505.
²⁷ United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991), citing, United States v.
Sutton, 732 F.2d 1483, 1490 (10th Cir. 1984) and United States v. Laurins, 857 F.2d 529,

536-37 (9th Cir. 1988).

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 section
1505. In doing so, it rejected the notion "that [section] 1505 applies only to
adjudicatory or rule-making activities, and does not apply to wholly investigatory
activity."²⁸ Furthermore, proximity to an agency's adjudicatory or rule-making
activities, such as auditors working under the direction of an officer with
adjudicatory authority, has been used to support a claim that an obstructed agency²⁹
activity constitutes a proceeding. The courts seem to see comparable breadth in the
Congressional equivalent ("obstructing the due and proper exercise of the power of³⁰
inquiry" by Congress and its committees).
In the case of either Congressional or administrative proceedings, section 1505
condemns only that misconduct which is intended to obstruct the administrative

²⁸ United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994). The court also observed that
"other courts have held that agency investigative activities are proceedings within the scope
of [section] 1505. In those cases, the investigations typically have involved agencies with
some adjudicative power, or with the power to enhance their investigations through the
issuance of subpoenas or warrants," id.
²⁹ United States v. Leo, 941 F.2d 181, 198-99 (3d Cir. 1991)("the government . . . argues that
the agency that Badolate obstructed acted under the direction of the Army's contracting
officer, who had the authority to make adjudications on behalf of the Defense Department.
. . . Other courts of appeals have broadly construed the term `proceeding' as that term is used
in §1505. The Sixth Circuit, in United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.
1970) rejected the `contention that the word "proceedings" refers only to those steps before
a federal agency that are judicial or administrative in nature.' The Tenth Circuit, in United
States v. Browning, Inc., 572 F.2d 720, 724 (10th Cir. 1978), wrote: `In sum, the term
"proceeding" is not . . . limited to something in the nature of a trial. The growth and
expansion of agency activities have resulted in a meaning being given to "proceeding" which
is more inclusive and which no longer limits itself to formal activities in a court of law.
Rather, the investigation or search for the true facts . . . is not to be ruled as a non-proceeding
simply because it is preliminary to indictment and trial.' See also . . . Rice v. United States,
356 F.2d 709, 712 (8th Cir. 1966)(`Proceedings before a governmental department or agency
simply mean proceeding in the manner and form prescribed for conducting business before
the department or agency. . .' Given the broad meaning of the word "proceeding" and the
Defense Contract Audit Agency's particular mission, we agree with the government that
when Badolate obstructed Stern's search for the true purchase order dates, Badolate
obstructed a proceeding within the meaning of §1505").
³⁰ United States v. Mitchell, 877 F.2d 294, 300-301 (4th Cir. 1989)("The question of whether
a given congressional investigation is a `due and proper exercise of the power of inquiry' for
purposes of [section] 1505 can not be answered by a myopic focus on formality. Rather, it
is properly answered by a careful examination of all the surrounding circumstances. If it is
apparent that the investigation is a legitimate exercise of investigative authority by a
congressional committee in an area within the committee's purview, it should be protected
by [section] 1505. While formal authorization is certainly a factor that weighs heavily in this
determination, its presence or absence is not dispositive. To give [section 1505] the
protective force it was intended, corrupt endeavors to influence congressional investigations
must be proscribed even when they occur prior to formal committee authorization").

proceedings or the due and proper exercise of the power of inquiry.³¹ In order to³²
overcome judicially-identified uncertainty as to the intent required, Congress added
a definition of "corruptly" in 1996: "As used in section 1505, the term `corruptly'
means acting with an improper purpose, personally or by influencing another,
including making a false or misleading statement, or withholding, concealing,
altering, or destroying a document or other information," 18 U.S.C. 1515(b).
Examples of the type of conduct that has been found obstructive include:
- enlisting others to lie to U.S. AID Inspector General's Office investigators³³
- using threats to avoid an interview with IRS officials³⁴
- making false statements to a Defense Department auditor³⁵
- lying to Customs Service officials³⁶
- endeavoring to use family relationship to obstruct a Congressional
investigation³⁷
- submitting false documentation in response to an IRS subpoena³⁸
- instructing a subordinate to destroy records sought under a DOE subpoena³⁹
- lying to a Customs Service inspector⁴⁰
- "blatant evasiveness and feigned forgetfulness" of a witness during testimony
before an SEC investigative hearing.⁴¹

³¹ United States v. Leo, 941 F.2d at 199; United States v. Mitchell, 877 at 299; United States
v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988).
³² United States v. Poindexter, 951 F.2d 369 (D.C.Cir. 1991)(holding that ambiguity of the
term "corruptly" in the context of 1505 rendered it unconstitutionally vague at least when
applied to false statements made directly to Congress).
³³ United States v. Kelley, 36 F.3d 1118 (D.C.Cir. 1994).
³⁴ United States v. Price, 951 F.2d 1028 (9th Cir. 1991).
³⁵ United States v. Leo, 941 F.2d 181 (3d Cir. 1991).
³⁶ United States v. Schwartz, 924 F.2d 410 (2d Cir. 1991).
³⁷ United States v. Mitchell, 877 F.2d 294 (4th Cir. 1989).
³⁸ United States v. Laurins, 857 F.2d 529 (9th Cir. 1988).
³⁹ Untied States v. Sutton, 732 F.2d 1483 (10th Cir. 1984).
⁴⁰ United States v. Browning, 630 F.2d 694 (10th Cir. 1980).
⁴¹ United State v. Alo, 439 F.2d 751 (2d Cir. 1971).

Witness Tampering (18 U.S.C. 1512)
Section 1512 forbids murdering (18 U.S.C. 1512(a)), harassing (18 U.S.C.
1512(c)), or otherwise tampering (18 U.S.C. 1512(b)) with federal witnesses in order
to prevent them from reporting misconduct to federal authorities, appearing as
witnesses in federal proceedings, or producing evidence at federal proceedings.
Although the murder and harassment subsections⁴² are not insignificant, the heart of
the section is the omnibus subsection, subsection 1512(b). It outlaws obstructing the
path to federal proceedings or authorities in any of four ways: (1) the use or
attempted use of force or intimidation, (2) the use or attempted use of threats, (3) the
use or attempted use of corrupt persuasion, or (4) by misleading someone else. More
precisely, it declares that:
I. Whoever
II. A. knowingly
1. uses
a. intimidation or
b. physical force,
2. threatens, or
3. corruptly persuades another person, or
4. attempts to do so, or
5. a. engages in misleading conduct, i.e., the use of
i. false statements
ii. omissions to mislead
iii. false documents
iv. misleading samples and the like, or

⁴² "(a)(1) Whoever kills or attempts to kill another person, with intent to — (A) prevent the
attendance or testimony of any person in an official proceeding; (B) prevent the production
of a record, document, or other object, in an official proceeding; or (C) prevent the
communication by any person to a law enforcement officer or judge of the United States of
information relating to the commission or possible commission of a Federal offense or a
violation of conditions of probation, parole, or release pending judicial proceedings; shall
be punished as provided in paragraph (2).
"(2) The punishment for an offense under this subsection is — (A) in the case of
murder (as defined in section 1111), the death penalty or imprisonment for life, and in the
case of any other killing, the punishment provided in section 1112; and (B) in the case of an
attempt, imprisonment for not more than twenty years.
* * *
"(c) Whoever intentionally harasses another person and thereby hinders, delays,
prevents, or dissuades any person from — (1) attending or testifying in an official
proceeding; (2) reporting to a law enforcement officer or judge of the United States the
commission or possible commission of a Federal offense or a violation of conditions of
probation, parole, or release pending judicial proceedings; (3) arresting or seeking the arrest
of another person in connection with a Federal offense; or (4) causing a criminal prosecution,
or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such
prosecution or proceeding; or attempts to do so, shall be fined under this title or imprisoned
not more than one year, or both", 18 U.S.C. 1512(a),(c).
The courts have applied the same construction to provisions common to the murder,
harassment and omnibus subsections, see e.g., United States v. Gabriel, 125 F.3d 89, 103 (2d
Cir. 1997); United States v. Cooper, 121 F.3d 130, 134 (3d Cir. 1997).

v. any other trick, scheme or misleading device⁴³
b.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, i.e., a
a. federal court proceeding,
b. federal grand jury proceeding,
c. Congressional proceeding,
d. federal agency proceeding, or
e. proceeding involving the insurance business;⁴⁴ 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, 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

2. a. i. alter,

ii. destroy,
iii. mutilate, or
iv. conceal
b. an object

⁴³ "As used in sections 1512 and 1513 of this title and in this section . . . (3) the term
`misleading conduct' means — (A) knowingly making a false statement; (B) intentionally
omitting information from a statement and thereby causing a portion of such statement to be
misleading, or intentionally concealing a material fact, and thereby creating a false
impression by such statement; (C) with intent to mislead, knowingly submitting or inviting
reliance on a writing or recording that is false, forged, altered, or otherwise lacking in
authenticity; (D) with intent to mislead, knowingly submitting or inviting reliance on a
sample, specimen, map, photograph, boundary mark, or other object that is misleading in a
material respect; or (E) knowingly using a trick, scheme, or device with intent to mislead,"

18 U.S.C. 1515(a)(3).

⁴⁴ "(a) As used in sections 1512 and 1513 of this title and in this section — (1) the term
`official proceeding' means — (A) a proceeding before a judge or court of the United States,
a United States magistrate, a bankruptcy judge, a judge of the United States Tax Court, a
special trial judge of the Tax Court, a judge of the United States Claims Court, or a Federal
grand jury; (B) a proceeding before the Congress; (C) a proceeding before a Federal
Government agency which is authorized by law; or (D) a proceeding involving the business
of insurance whose activities affect interstate commerce before any insurance regulatory
official or agency or any agent or examiner appointed by such official or agency to examine
the affairs of any person engaged in the business of insurance whose activities affect
interstate commerce," 18 U.S.C. 1515(a)(1).

c. with intent to impair
d. the object's
i. integrity or
ii. availability for use
e. 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;
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, 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
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, i.e..
i. a federal investigator,
ii. a federal prosecutor, or
iii. a federal probation officer⁴⁵

3. of information relating to the

⁴⁵ "(a) As used in sections 1512 and 1513 of this title and in this section
. . . (4) the term "law enforcement officer" means an officer or employee of the Federal
Government, or a person authorized to act for or on behalf of the Federal Government or
serving the Federal Government as an adviser or consultant — (A) authorized under law to
engage in or supervise the prevention, detection, investigation, or prosecution of an offense;
or (B) serving as a probation or pretrial services officer under this title," 18 U.S.C.

1515(a)(4).

a. commission or
b. possible commission of a
4. a. Federal offense or
b. [a] violation of conditions of
i. probation,
ii. parole, or
iii. release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both, 18
U.S.C. 1512(b).⁴⁶
In more general terms, subsection 1512(b) bans (1) knowingly, (2) using one
of the prohibited forms of persuasion, (3) with the intent to prevent a witness's
testimony or physical evidence from being presented at official federal proceedings
or with the intent to prevent a witness from reporting evidence of a crime to federal⁴⁷
authorities."
Knowingly. Obstruction under section 1503 can only be committed during the
pendency of federal proceedings. Congress expressly disclaimed any intention to
impose a similar requirement for obstruction prosecutions under section 1512.⁴⁸
Consequently, conviction under section 1512 does not require the government to
show that the defendant was aware of any pending or contemplated federal
proceedings⁴⁹ or investigations.⁵⁰ Congress likewise eliminated any requirement that
the government prove that the defendant knew of the federal character of the
proceedings or investigations he intended to obstruct.⁵¹ In a case charging that the

⁴⁶ If the proceeding involves a crime punishable by a higher maximum term of imprisonment
than the term prescribed for obstruction, then the maximum penalty for obstruction is
increased to match the higher maximum of the underlying offense, 18 U.S.C. 1512(i)("If the
offense under this section occurs in connection with a trial of a criminal case, the maximum
term of imprisonment which may be imposed for the offense shall be the higher of that
otherwise provided by law or the maximum term that could have been imposed for any
offense charged in such case").
⁴⁷ See e.g., United States v. Thompson, 76 F.3d 442, 452-53 (2d Cir. 1996); United States
v. Victor, 973 F.2d 975, 978 (1st Cir. 1992).
⁴⁸ 18 U.S.C. 1512(e)("For the purposes of this section — (1) an official proceeding need not
be pending or about to be instituted at the time of the offense; and (2) the testimony, or the
record, document, or other object need not be admissible in evidence or free of a claim of
privilege").
⁴⁹ United States v. Kelley, 36 F.3d 1118, 1128 (D.C.Cir. 1994).
⁵⁰ United States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995).
⁵¹ "(f) In a prosecution for an offense under this section, no state of mind need be proved
with respect to the circumstance — (1) that the official proceeding before a judge, court,
magistrate, grand jury, or government agency is before a judge or court of the United States,
a United States magistrate, a bankruptcy judge, a Federal grand jury, or a Federal
Government agency; or (2) that the judge is a judge of the United States or that the law
enforcement officer is an officer or employee of the Federal Government or a person
authorized to act for or on behalf of the Federal Government or serving the Federal
Government as an adviser or consultant," 18 U.S.C. 1512(f); United States v. Davis, 932
F.2d 752, 761 (9th Cir. 1991)("Under §1512, the United States was not required to prove the
defendant knew he was tampering with a federal proceeding"); United States v. Stanfield,

defendant acted with the intent to obstruct the reporting of a federal crime to federal
authorities, the government need not show that the accused knew the crime was
federal or knew that the authorities were federal authorities, but the government must
still prove the existence of the federal nexus in fact.⁵² As a practical matter, evidence
that establishes the requisite intent will ordinarily prove guilty knowledge as well.
Corrupt Persuasion. Corrupt persuasion seems to be both the most commonly
charged and the most perplexing of the means used in violation of section 1512 to
obstruct federal proceedings and criminal investigations. There is no consensus
among the circuits as to its exact demands. The Second and Eleventh Circuits have
held the element requires no more than that the government prove "that the
defendant's attempts to persuade were motivated by an improper purpose."⁵³ The
Third Circuit appears to have adopted an "improper purpose plus" standard, having
suggested that under the facts of a given case an accused who — with the improper
intent to obstruct — attempted to persuade a witness to testify falsely would be guilty
of a violation of "corruptly persuading."⁵⁴ The District of Columbia Circuit seems
to be similarly inclined, for when it addressed a Poindexter-based, vagueness
challenge it found the element satisfied by evidence that the defendant had attempted
to persuade a witness "to violate her legal duty to testify truthfully in court."⁵⁵
When the defendant's misconduct takes the form of deceiving a potential
witness with the intent that the witness later repeat the deception either in federal
proceedings or to federal authorities, the government need prove neither that the
potential witness was in fact deceived nor that there was any particular likelihood
that potential witness would in fact ever be called upon to testify or report.⁵⁶

101 F.3d 909, 918 (3d Cir. 1996).

⁵² United States v. Bell, 113 F.3d 1345, 1349 (3d Cir. 1997)("the government must prove
that at least one of the law-enforcement-officer communications which the defendant sought
to prevent would have been with a federal officer, but that the government is not obligated
to prove that the defendant knew or intended anything with respect to this federal
involvement . . . the government may carry this burden by showing that the conduct which
the defendant believed would be discussed in these communications constitutes a federal
offense . . ."); United States v. Frankhauser, 80 F.3d 641, 652 (1st Cir. 1996).
⁵³ United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996); United States v. Shotts, 145
F.3d 1289, 1300-301 (11th Cir. 1998); United States v. Kulczyk, 931 F.2d 542, 546 n.7 (9th
Cir. 1991).
⁵⁴ United States v. Farrell, 126 F.3d 484, 489-91 (3d Cir. 1997).
⁵⁵ United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996)("we disagree with
Morrison's claim that his conduct could not still fall under the statutory ban. We note, in that
regard, that the Poindexter court expressly approved of an interpretation of 1505 which
outlawed conduct `corrupting another person by influencing him to violate his legal duty,'
[United States v. Poindexter, 951 F.2d 369, 379 (D.C. Cir. 1992)]. Morrison tried to `corrupt'
Doris Holmes by exhorting her to violate her legal duty to testify truthfully in court")(italics
in the original).
⁵⁶ United States v. Gabriel, 125 F.3d 89, 102-3 (2d Cir. 1997. Gabriel also holds that in a
1512 prosecution the government need not met the natural-tendency-to-influence demand
imposed on the omnibus clause of section 1503 in United States v. Aguilar, 515 U.S. 593
(1995).

Guilty Intent. Conviction under the omnibus provisions of 1512(b) can only
follow upon evidence proving beyond a reasonable doubt that the defendant intended
by his prohibited misconduct to obstruct a proceeding or the report of a crime that
was in fact either a federal proceeding or federal crime. Proof, that the accused
intended to obstruct proceedings or the report of crimes that were simple state
proceedings or state crimes, will not do.⁵⁷ The federal proceedings protected by
obstruction under section 1512 are defined broadly by statute to cover executive,⁵⁸
judicial and legislative branch proceedings. Just as the statute does not insist upon
pending proceedings,⁵⁹ so it is complete upon the commission of the prohibited⁶⁰
misconduct committed with qualifying intent.
The defendant's guilty motive need not be exclusive; the demands of subsection

1512(b) are satisfied as long as the misconduct of the accused was motivated at least⁶¹

in part by a qualifying intent to obstruct."
Defenses. Subsection 1512(d) creates an affirmative defense available to any
defendant who can establish by a preponderance of the evidence that his conduct was
not otherwise criminal and was committed for the sole purpose of producing truthful
evidence.⁶²

⁵⁷ Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1489-90 (6th Cir. 1989); United States
v. Cooper, 121 F.3d 130, 133-36 (3d Cir. 1997).
⁵⁸ "(a) As used in sections 1512 and 1513 of this title and in this section — (1) the term
`official proceeding' means — (A) a proceeding before a judge or court of the United States,
a United States magistrate, a bankruptcy judge, a judge of the United States Tax Court, a
special trial judge of the Tax Court, a judge of the United States Claims Court, or a Federal
grand jury; (B) a proceeding before the Congress; (C) a proceeding before a Federal
Government agency which is authorized by law; or (D) a proceeding involving the business
of insurance whose activities affect interstate commerce before any insurance regulatory
official or agency or any agent or examiner appointed by such official or agency to examine
the affairs of any person engaged in the business of insurance whose activities affect
interstate commerce," 18 U.S.C. 1515(a)(1).
⁵⁹ 18 U.S.C. 1512(e)("For the purposes of this section — (1) an official proceeding need not
be pending or about to be instituted at the time of the offense; and (2) the testimony, or the
record, document, or other object need not be admissible in evidence or free of a claim of
privilege").
⁶⁰ United States v. Kelley, 36 F.3d 1118, 1128 (D.C.Cir. 1994)("The statute only requires
that the jury be able reasonably to infer from the circumstances that Kelley, fearing that a
grand jury proceeding had been or might be instituted, corruptly persuaded persons with the
intent to influence their possible testimony at such a proceeding").
⁶¹ United States v. Jefferson, 149 F.3d 444, 446 (6th Cir. 1998); United States v. Johnson,

968 F.2d 208 (6th Cir. 1992).

⁶² 18 U.S.C. 1512(d)("In a prosecution for an offense under this section, it is an affirmative
defense, as to which the defendant has the burden of proof by a preponderance of the
evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole
intention was to encourage, induce, or cause the other person to testify truthfully"); United
State v. Thompson, 76 F.2d 442 (2d Cir. 1996)(upholding the constitutionality of the defense
in the face of a challenge that it unconstitutionally shifted the burden of proof to the
accused).

In addition, no violation of section 1512 occurs when an individual, whether an
attorney or not, advises a potential witness to assert an available Fifth Amendment
privilege against self-incrimination.⁶³

⁶³ United States v. Farrell, 126 F.3d 484, 488-89 (3d Cir. 1997).