Offenses Against the Judicial System - Module 4 of 5
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Module
4: Offenses Against the Judicial System
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
[25] United States v. Rasco, 853 F.2d 501 (7th Cir. 1988)
[33] United States v. Stewart, 727 F. Supp. 1068 (N.D. Tex. 1989)