Order Code RL34304
Obstruction of Congress: a Brief Overview of
Federal Law Relating to Interference with
Congressional Activities
December 27, 2007
Charles Doyle
Senior Specialist
American Law Division
Obstruction of Congress: A Brief Overview of Federal
Law Relating to Interference with Congressional
Activities
Summary
Obstruction of justice is the impediment of governmental activities. There are
a host of federal criminal laws that prohibit obstructions of justice. The six most
general outlaw obstruction of judicial proceedings ( 18 U. S. C. 1503), witness
tampering ( 18 U. S. C. 1512), witness retaliation ( 18 U. S. C. 1513), obstruction of
Congressional or administrative proceedings ( 18 U. S. C. 1505), conspiracy to defraud
the United States ( 18 U. S. C. 371), and contempt ( a creature of statute, rule and
common law). All but Section 1503 cover Congressional activities.
The laws that supplement, and sometimes mirror, the basic six tend to proscribe
a particular means of obstruction. Some, like the perjury and false statement statutes,
condemn obstruction by lies and deception. Others, like the bribery, mail fraud, and
wire fraud statutes, prohibit obstruction by corruption. Some outlaw the use of
violence as a means of obstruction. Still others ban the destruction of evidence. A
few simply punish “ tipping off” those who are the targets of an investigation. A good
number of these apply in a Congressional context.
Many of these offenses may also provide the basis for racketeering and money
laundering prosecutions, and each provides the basis for criminal prosecution of
anyone who aids and abets in or conspires for their commission.
This report is available in abbreviated form – without footnotes, quotations, or
citations – as CRS Report RS22784, Obstruction of Congress: an Abridged Overview
of Federal Laws Relating to Interference with Congressional Activities. Both
versions have been excerpted from CRS Report RL34303, Obstruction of Justice: An
Overview of Some of the Federal Laws that Prohibit Interference with Judicial,
Executive and Legislative Activities. Excerpted portions of RL34303 are also
available as follows. CRS Report RS22783, Obstruction of Justice: An Abridged
Overview of Related Federal Criminal Laws; CRS Report 98- 808, Perjury Under
Federal Law: A Brief Overview; and CRS Report 98- 807, Perjury Under Federal
Law: A Sketch of the Elements. All by Charles Doyle.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
General Obstruction Prohibitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Witness Tampering ( 18 U. S. C. 1512) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Obstruction by Violence ( 18 U. S. C. 1512( a)) . . . . . . . . . . . . . . . . . . . . 2
Auxiliary Offenses and Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Obstruction by Intimidation, Threats, Persuasion,
or Deception ( 18 U. S. C. 1512( b) . . . . . . . . . . . . . . . . . . . . . . . . 10
Obstruction by Destruction of Evidence ( 18 U. S. C. 1512( c)) . . . . . . . 14
Obstruction by Harassment ( 18 U. S. C. 1512( d)) . . . . . . . . . . . . . . . . . 16
Obstructing Congressional or Administrative
Proceedings ( 18 U. S. C. 1505) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Retaliating Against Federal Witnesses ( 18 U. S. C. 1513) . . . . . . . . . . . . . . 20
Conspiracy to Obstruct ( 18 U. S. C. 371) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Conspiracy to Defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Conspiracy to Commit a Substantive Offense . . . . . . . . . . . . . . . . . . . 24
Contempt of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Obstruction of Justice by Violence or Threat . . . . . . . . . . . . . . . . . . . . . . . 32
Violence and Threats Against Officials, Former Officials,
and Their Families ( 18 U. S. C. 115) . . . . . . . . . . . . . . . . . . . . . . . 33
Violence and Threats Against Federal Officials on Account
of the Performance of Their Duties . . . . . . . . . . . . . . . . . . . . . . . 35
Obstruction of Justice by Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Bribery of Jurors, Public Officers and Witnesses ( 18 U. S. C. 201) . . . 37
Obstruction by Mail or Wire Fraud ( 18 U. S. C. 1341, 1343) . . . . . . . . 40
Obstruction by Extortion Under Color of Official Right
( 18 U. S. C. 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Obstruction of Justice by Deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Perjury Generally ( 18 U. S. C. 1621) . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Subornation of Perjury ( 18 U. S. C. 1622) . . . . . . . . . . . . . . . . . . . . . . . 51
False Statements ( 18 U. S. C. 1001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1 Black’s describes obstruction of justice simply as any “ interference with the orderly
administration of law and justice,” BLACK’S LAW DICTIONARY, 1107 ( 8th ed. 2004).
2 For this reason, theft and embezzlement statutes are beyond the scope of this report, even
though they are often designed to prevent the frustration of government programs.
3 Portions of this report draw upon two earlier documents, CRS Report 98- 808, Perjury
Under Federal Law: A Brief Overview, and CRS Report 98- 832, Obstruction of Justice
Under Federal Law: A Review of Some of the Elements.
4 Contempt is a creature of statute and common law described in, but not limited to, 18
U. S. C. 401, 402; 2 U. S. C. 192.
5 18 U. S. C. 1515( a)( 1) (“ 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 judge, 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 Court
of Federal Claims, 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
Obstruction of Congress: A Brief Overview
of Federal Law Relating to Interference With
Congressional Activities
Introduction
Obstruction of justice is the frustration of governmental purposes by violence,
corruption, destruction of evidence, or deceit. 1 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. 2 This is a brief description of those that outlaw interference
with Congressional activities. 3
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. 4 All but Section 1503 apply to Congressional activities. 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 – Congressional,
judicial, or executive. 5 It consists of four somewhat overlapping crimes: use of force
CRS- 2
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”). Federal prosecutions for
obstructing state insurance proceedings appear to have been infrequent. For additional
discussion of Section 1512 see, Twenty- Second Survey of White Collar Crime: Obstruction
of Justice, 44 AMERICAN CRIMINAL LAW REVIEW 794 ( 2007).
6 Here and throughout this report the outline of the statute’s elements uses the language of
the statute wherever possible.
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 free
standing 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). 6 In essence, they condemn
the use of violence to prevent a witness from testifying or producing evidence for an
investigation and set their penalties according to whether the obstructive violence
used is a homicide, an assault or a threat. In more exact terms, they declare:
1512( a)( 1) 1512( a)( 2)
I. Whoever I. Whoever
II. a. kills or
b. attempts to kill
II. a. uses physical force,
b. attempts to use physical force,
c. uses the threat of physical force, or
d. attempts to use the threat of
physical force
III. with the intent to III. with the intent to
a. prevent attendance or testimony at
an official proceeding ( i. e., a federal
judicial, legislative or administrative
proceeding)
a. influence, delay, or prevent testimony
at an official proceeding
b. prevent the production of an item at
an official proceeding
b. cause or induce another to withhold
testimony or an item at an official
proceeding
CRS- 3
7 18 U. S. C. 1512( a). Unlike most federal crimes, subsection 1512( a) does not include
imposition of a fine among the sanctions that follow as a consequence of its provisions –
with one exception. It states that a subsection 1512( a) manslaughter offense shall be
punished as provided in 18 U. S. C. 1112. In addition to a term of imprisonment, section
1112 states that offenders may be “ fined under this title.” Section 3571 of Title 18 sets the
general fine level for felonies ( crimes whose maximum term of imprisonment is more than
one year) at the greater of either not more than $ 250,000 for individuals ( not more than
$ 500,000 for organizations) or twice the amount of gain or loss associated with the offense.
For purposes of brevity and convenience, a reference hereafter to a fine of not more than
$ 250,000 should be understood to include the higher limits for organizations or when the
gain or loss associated with the offense is greater. Although many federal statutes suggest
that offenders may be sentenced to a fine rather than a term of imprisonment at the
discretion of the court, other provisions of law and the influence of the Sentencing
Guidelines greatly curtail the number of instances in which simple imposition of a fine
would be considered an appropriate punishment for the commission of a felony, 18 U. S. C.
3553 ( imposition of sentence); U. S. S. G. § § 2J1.2, 2J1.3 ( base offense level for obstruction
of justice and perjury is 14), U. S. S. G. ch. 5 Pt. A Sentencing Table( sentencing range for first
time offenders with an offense level of 14 is 15 to 21 months imprisonment). For a general
discussion of the operation of the federal sentencing guidelines see CRS Report RL32846,
How the Federal Sentencing Guidelines Work: Two Examples.
c. prevent the communication to U. S.
law enforcement authorities of a
federal offense or a violation of
probation, parole, or supervised
release.
c. hinder, delay or prevent the
communication to U. S. law
enforcement authorities of a
federal offense or a violation of
probation, parole, or supervised
release
d. cause or induce another to alter,
conceal or destroy an item with the
intent to make unavailable
e. cause or induce another to evade
process
f. cause or induce another to fail to
comply with process
IV. shall be punished under § 1512( a)( 3)
in the case of:
IV. shall be punished under § 1512( a)( 3)
in the case of:
a. murder- death or life imprisonment a. use or attempted use of physical force-imprisonment
for not more than 20
years
b. voluntary manslaughter- imprisonment
for not more than 10 years
b. threats to use physical force -
imprisonment for not more than 10
years
c. involuntary manslaughter-imprisonment
for not more than 6
years
d. attempted murder- imprisonment for
not more than 20 years7
CRS- 4
8 “ 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,” 18 U. S. C. 1512( j).
9 “ Whoever kills or attempts to kill another person, with intent to . . . ( 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 ( 3),” 18 U. S. C. 1512( a)( 1). The obstruction by
physical violence or threat portion of subsection 1512( a) is similarly worded, see 18 U. S. C.
1512( a)( 2).
10 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).
11 “ This chapter does not prohibit or punish the providing of lawful, bona fide, legal
representation services in connection with or anticipation of an official proceeding,” 18
U. S. C. 1512( c).
12 The Sarbanes- Oxley Act redesignated Section 1512( d)( 2000 ed.) as Section 1512( e): “ 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,” 18 U. S. C. 1512( e). See, United
States v. Lowery, 135 F. 3d 957, 960 ( 5th Cir. 1998)( reversing the defendant’s obstruction of
justice conviction for the trial court’s failure to permit evidence substantiating the defense);
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
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. 8
Subsection 1512( a)’ s whistle blower offense applies only to violence intended
to obstruct the flow of information to federal “ law enforcement officers.” 9 The
definition of “ law enforcement officers” for purposes of subsection 1512( a) seems
too narrow to encompass the Members or committees of Congress or their staff under
most circumstances. 10
There are two statutory defenses to charges under Section 1512. One covers
legitimate legal advice and related services, 18 U. S. C. 1515( c), 11 and is intended for
use in connection with the corrupt persuasion offenses proscribed elsewhere in
Section 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). 12
CRS- 5
accused); United States v. Arias, 253 F. 3d 453, 457 ( 9th Cir. 2001)(“ This section was
apparently intended to exempt judicial officers who lawfully remind witnesses or defendants
of their oath to give true testimony, although the statutory language itself is not so limited.
See U. S. v. Johnson, 968 F. 2d 208, 213 ( 2d Cir. 1992)( quoting legislative history)” ).
13 18 U. S. C. 1512( h)(“ There is extraterritorial Federal jurisdiction over an offense under
this section”); see e. g., United States v. Fisher, 494 F. 3d 5, 8- 9 ( 1st Cir. 2007)( contemplated
murder in Canada of a federal witness).
14 EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 ( 1991)(“ It is a long- standing
principle of American law that legislation of Congress, unless a contrary intent appears, is
meant to apply only within the territorial jurisdiction of the United States”); Murray v. the
Schooner Charming Betsy, 2 Cranch 64, 118 ( 6 U. S. 34, 67)( 1804)(“[ A] n act of Congress
ought never to be construed to violate the law of nations, if any other possible construction
remains”); Weinberger v. Rossi, 456 U. S. 25, 32 ( 1982).
15 United States v. Bowman, 260 U. S. 94, 98 ( 1922)(“ But the same rule of interpretation [ of
purely domestic application] should not be applied to criminal statutes which are, as a class,
not logically dependent on their locality for the government’s jurisdiction, but are enacted
because of the right of the government to defend itself against obstruction, or fraud wherever
perpetrated. . . . We can not suppose that when Congress enacted the [ fraud] statute or
amended it, it did not have in mind that a wide field for such fraud upon the government was
in private and public vessels of the United States on the high seas and in foreign ports and
beyond the land jurisdiction of the United States, and therefore intend to include them in the
section”); Ford v. United States, 273 U,. S. 593, 623 ( 1927) (“ a man who outside of a
country willfully puts in motion a force to take effect in it is answerable at the place where
the evil is done”).
16 Historically, the courts have found compatibility with international law where a case falls
within one of the five principles upon which geographical jurisdiction may be predicated.
Subsections 1512( f) and 1512( g) seek to foreclose a cramped construction of the
various offenses proscribed in Section 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.
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. 13
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. 14 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
jurisdiction15 and find such an application compatible with the principles of
international law. 16 The existence of extraterritorial jurisdiction is one thing; the
CRS- 6
Either of two such principles would appear to cover the overseas application of Section
1512. The territorial principle holds that a country may apply its laws to misconduct that
has a substantial impact within its borders, United States v. Neil, 312 F. 3d 419, 422 ( 9th Cir.
2002); the protective principle holds that a country may apply its laws to protect the
integrity of governmental functions, United States v. Yousef, 327 F. 3d 56, 121 ( 2d Cir.
2003). See also, RESTATEMENT ( THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES, § 402 & 402 cmt. f ( 1986).
17 See generally, CRS Report 94- 166, Extraterritorial Application of American Criminal
Law.
18 The Constitution requires federal crimes committed within the United States to be tried
in the states and districts in which they occur, U. S. Const. Art. III, § 2, cl. 3; Amend. VI. It
permits Congress to determine where federal crimes committed outside the United States
may be tried, U. S. Const. Art. III, § 2, cl. 3; see, 18 U. S. C. 3238. This means a federal crime
committed within the United States may be tried wherever one of its conduct elements is
committed, United States v. Rodriguez- Moreno, 526 U. S. 275, 280 ( 1999). Although the
Court left the question unaddressed, id. at 279 n. 2, this seems to preclude trial within the
district of the obstructed proceeding if that is the only nexus to an obstruction committed
within the United States in the district of the obstructed proceeding, United States v.
Cabrales, 524 U. S. 1, 5- 6 ( 1998); United States v. Bowens, 224 F. 3d 302, 314 ( 4th Cir.
2000); United States v. Strain, 396 F. 3d 689, 694 ( 5th Cir. 2005). For a more detailed
discussion see CRS Report RL33223, Venue: A Legal Analysis of Where a Federal Crime
May Be Tried.
19 18 U. S. C. 371.
20 E. g., Whitfield v. United States, 543 U. S. 209, 214- 15 ( 2004); United States v. Shabani,
513 U. S. 10, 17 ( 1994).
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. 17
Subsection 1512( i) states that violations of Section 1512 or Section 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. 18
Auxiliary Offenses and Liability.
Subsection 1512( k) makes conspiracy to violate Section 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 5 years and conviction requires the government to prove the commission of an
overt act in furtherance of the scheme by one of the conspirators. 19 Subsection
1512( k) has no specific overt act element, and the courts have generally declined to
imply one under such circumstances. 20 It remains to be seen whether, in the absence
of an overt act element, venue over a subsection 1512( k) conspiracy is proper in any
CRS- 7
21 As general rule, a crime occurs and venue is thus proper where a conduct element occurs,
and “ where a crime consists of distinct parts which have different localities the whole may
be tried where any part can be proved to have been done . . . cf. Hyde v. United States, 225
U. S. 347, 356- 67 ( 1912)( venue proper against defendant in district where co- conspirator
carried out overt acts even though there was no evidence that the defendant had ever entered
that district or that the conspiracy was formed there),” United States v. Rodriguez- Moreno,
526 U. S. 275, 280- 82 ( 1999). Hyde was charged under section 5440 of the Revised Statutes,
an earlier version of 18 U. S. C. 371, that contained an overt act requirement, 225 U. S. at 349.
22 Pinkerton v. United States, 328 U. S. 640, 646- 48 ( 1946); United States v. Moran, 493
F. 3d 1002, 1009 ( 9th Cir. 2007); United States v. Roberson, 474 F. 3d 432, 433 ( 7th Cir.
2007); United States v. Lake, 472 F. 3d 1247, 1265 ( 10th Cir. 2007).
23 18 U. S. C. 2 (“( a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a principal. ( b)
Whoever willfully causes an act to be done which if directly performed by him or another
would be an offense against the United States, is punishable as a principal”).
24 Nye & Nissen v. United States, 336 U. S. 613, 619 ( 1949); United States v. Pnado Franco,
503 F. 3d 389, 396 ( 5th Cir. 2007); United States v. Kemp, 500 F. 3d 257, 293 ( 3d Cir. 2007);
see also, United States v. Wilson, 160 F. 3d 732, 739 ( D. C. Cir. 1998)( aiding and abetting
a subsection 1512( a) offenses)(“ Aiding and abetting requires the government to prove: ( 1)
the specific intent to facilitate the commission of a crime of by another; ( 2) guilty
knowledge; ( 3) that the other was committing an offense; and ( 4) assisting or participating
in the commission of the offense”).
25 United States v. Garcia- Carrasquillo, 483 F. 3d 124, 130 ( 1st Cir. 2007); United States v.
Hassoun, 476 F. 3d 1181, 1183 n. 2 ( 11th Cir. 2007); United States v. Reifler, 446 F. 3d 65, 96
( 2d Cir. 2006).
26 18 U. S. C. 3 (“ Whoever, knowing that an offense against the United States has been
committed, receives, relieves, comforts or assists the offender in order to hinder or prevent
his apprehension, trial or punishment, is an accessory after the fact. . .”).
27 United States v. Gianakos, 415 F. 3d 912, 920 n. 4 ( 8th Cir. 2005); United States v.
DeLaRosa, 171 F. 3d 215, 221 ( 5th Cir. 1999); United States v. Irwin, 149 F. 3d 565, 571 ( 7th
Cir. 1998).
district in which only an overt act in its furtherance is committed. 21 Regardless of
which section is invoked, conspirators are criminally liable under the Pinkerton
doctrine for any crime committed in the foreseeable furtherance of the conspiracy. 22
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. 23 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, that he seek by his action to make it succeed.” 24 It is also necessary to prove
that someone else committed the underlying offense. 25
Section 3 outlaws acting as an accessory after the fact, 26 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.” 27
CRS- 8
28 United States v. Hill, 279 F. 3d 731, 741 ( 9th Cir. 2002); United States v. DeLaRosa, 171
F. 3d 215, 221 ( 5th Cir. 1999); United States v. Irwin, 149 F. 3d 565, 571 ( 7th Cir. 1998).
29 United States v. Taylor, 322 F. 3d 1209, 1211- 212 ( 9th Cir. 2003).
30 18 U. S. C. 3 (“. . . Except as otherwise expressly provided by any Act of Congress, an
accessory after the fact shall be imprisoned not more than one- half the maximum term of
imprisonment or ( notwithstanding section 3571) fined not more than one- half the maximum
fine prescribed for the punishment of the principal, or both; or if the principal is punishable
by life imprisonment or death, the accessory shall be imprisoned not more than 15 years”).
31 18 U. S. C. 4 (“ Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as soon as possible make
known the same to some judge or other person in civil or military authority under the United
States, shall be fined under this title or imprisoned not more than three years, or both”).
32 United States v. Gebbie, 294 F. 3d 540, 544 ( 3d Cir. 2002); United States v. Cefalu, 85
F. 3d 964, 969 ( 2d Cir. 1996); United States v. Vasquez- Chan, 978 F. 2d 546, 555( 9th Cir.
1992); United States v. Adams, 961 F. 3d 505, 508 ( 5th Cir. 1992).
33 18 U. S. C. 4, 3571.
34 18 U. S. C. 373( a)(“ Whoever, with intent that another person engage in conduct
constituting a felony that has as an element the use, attempted use, or threatened use of
physical force against property or against the person of another in violation of the laws of
the United States, and under circumstances strongly corroborative of that intent, solicits,
commands, induces, or otherwise endeavors to persuade such other person to engage in such
conduct, shall be imprisoned not more than one- half the maximum term of imprisonment or
( notwithstanding section 3571) fined not more than one- half of the maximum fine prescribed
for the punishment of the crime solicited, or both; or if the crime solicited is punishable by
life imprisonment or death, shall be imprisoned for not more than twenty years”). In United
States v. Fisher, 494 F. 3d 5, 7- 8 ( 1st Cir. 2007), the First Circuit upheld a conviction for
“ solicitation to commit a crime of violence, in violation of 18 U. S. C. 373. The particular
crime of violence specified in the indictment was the murder of a cooperating federal
witness. See 18 U. S. C. 1512( a)( 1)( A).”
Prosecution requires the commission of an underlying federal crime by someone
else. 28 An offender cannot be both a principal and an accessory after the fact to the
same offense. 29 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). 30
Although at first glance section 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. 31 “ 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.” 32 The offense is punishable by
imprisonment for not more than 3 years and/ or a fine of not more than $ 250,000.33
Solicitation to commit an offense under subsection 1512( a), or any other crime
of violence, is prohibited in 18 U. S. C. 373.34 “ 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
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35 United States v. Caldwell, 433 F. 3d 378, 390 ( 4th Cir. 2005); United States v. Rahman,
189 F. 3d 88, 125 ( 2d Cir. 1999); United States v. Rahman, 34 F. 3d 1331, 1337 ( 7th Cir.
1994); United States v, Buckalew, 859 F. 2d 1052, 1052- 53 ( 1st Cir. 1988).
36 18 U. S. C. 373( b), ( c)(“( b) It is an affirmative defense to a prosecution under this section
that, under circumstances manifesting a voluntary and complete renunciation of his criminal
intent, the defendant prevented the commission of the crime solicited. A renunciation is not
" voluntary and complete" if it is motivated in whole or in part by a decision to postpone the
commission of the crime until another time or to substitute another victim or another but
similar objective. If the defendant raises the affirmative defense at trial, the defendant has
the burden of proving the defense by a preponderance of the evidence. ( c) It is not a defense
to a prosecution under this section that the person solicited could not be convicted of the
crime because he lacked the state of mind required for its commission, because he was
incompetent or irresponsible, or because he is immune from prosecution or is not subject
to prosecution.”).
37 18 U. S. C. 373.
38 18 U. S. C. 1961- 1963.
39 18 U. S. C. 1961.
40 Id. E. g., United States v. Diaidone, 471 F. 3d 371 ( 2d Cir. 2006).
41 18 U. S. C. 1963. For a general discussion of RICO see, Twenty- Second Survey of White
Collar Crime: Racketeer Influenced and Corrupt Organizations, 44 AMERICAN CRIMINAL
LAW REVIEW 901 ( 2007); CRS Report 96- 950, RICO: A Brief Sketch.
42 18 U. S. C. 1956.
43 18 U. S. C. 1956( c)( 7)( A). A second money laundering statute, 18 U. S. C. 1957, outlaws
monetary transactions involving more than $ 10,000 consisting of proceeds generated by any
endeavored to persuade such other person to commit the crime of violence under
circumstances that strongly corroborate evidence of that intent.” 35 Section 373
provides an affirmative statutory defense if offender prevents the commission of the
solicited offense. 36 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. 37
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. The
racketeering statutes ( RICO) outlaw acquiring or conducting the affairs of an
interstate enterprise through a pattern of “ racketeering activity.” 38 The commission
of any of a series of state and federal crimes ( predicate offenses) constitutes a
racketeering activity. 39 Section 1512 offenses are RICO predicate offenses. 40 RICO
violations are punishable by imprisonment for not more that 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. 41
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.” 42
Any RICO predicate offense is by virtue of that fact a specified unlawful activity, i. e.,
a money laundering predicate offense. 43 Money laundering is punishable by
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of the predicate offenses identified in Section 1956, 18 U. S. C. 1957( f).
44 18 U. S. C. 1956, 981, 982. For a general discussion of the money laundering statutes see,
Twenty- Second Survey of White Collar Crime: Money Laundering, 44 AMERICAN CRIMINAL
LAW REVIEW 769 ( 2007); CRS Report RL33315, Money Laundering: An Overview of 18
U. S. C. 1956 and Related Federal Criminal Law.
45 18 U. S. C. 16( a)(“ The term ‘ crime of violence’ means – ( a) an offense that has as an
element the use, attempted use, or threatened use of physical force against the person or
property of another”).
46 Offenders face a fine and term of imprisonment twice that of the offense committed by
the child, 18 U. S. C. 25( b).
47 Offenders face a term of imprisonment of not more than 10 years in addition to the
penalty imposed for the crime of violence, 18 U. S. C. 521( b).
48 Offenders face a term of imprisonment ranging from imprisonment for not less than 5
years to imprisonment for life depending upon the circumstances of the offenses in addition
to the penalty imposed for the underlying crime of violence, 18 U. S. C. 924( c)( 1). In United
States v. Harris, 498 F. 3d 278 ( 4th Cir. 2007), the Fourth Circuit upheld a conviction for
violating subsections 1512( a) and 924( c) in connection with the firebombing of a witness’s
home ( for purposes of 924( c) a firearm includes explosive or incendiary devices, 18 U. S. C.
921( a)( 3),( 4)).
49 Offenders face a term of imprisonment of not less than 5 years in addition to the penalty
imposed for the underlying crime of violence, 18 U. S. C. 929( a)( 1).
50 Offenders face a term of imprisonment of not more than 20 years, 18 U. S. C. 1028( b)( 3).
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. 44
A subsection 1512( a) offense is by definition a crime of violence. 45
Commission of a crime of violence is an element of, or a sentence enhancement
factor for, several other federal crimes, e. g.:
- 18 U. S. C. 25 ( use of a child to commit a crime of violence), 46
- 521 ( criminal street gang), 47
- 924( c)( carrying a firearm during and in relation to a crime of violence), 48
- 929 ( carrying a firearm with restricted ammunition during and in relation to a
crime of violence), 49
- 1028 ( identity fraud in connection with a crime of violence). 50
Obstruction by Intimidation, Threats, Persuasion,
or Deception ( 18 U. S. C. 1512( b).
The second group of offenses within Section 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, it
provides that:
I. Whoever
II. knowingly
A. uses intimidation
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51 “ 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).
52 “( 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).
B. threatens, or
C. corruptly persuades another person, or
D. attempts to do so, or
E. 1. engages in misleading conduct51
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, 52 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,
3. a. evade
b. legal process
c. summoning that person
i. to appear as a witness, or
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53 “( 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).
54 18 U. S. C. 1512( b). “ Shall be fined under this title” refers to the fact that as a general rule
in the case of felonies 18 U. S. C. 3571 calls for fines of not more than the greater of
$ 250,000 for individuals ($ 500,000 for organizations) or of twice the amount of the gain or
loss associated with the offense.
As in the case of subsection 1512( a), if a subsection 1512( b) obstruction is committed
in connection with the trial of a criminal charge which is more severely punishable, the
higher penalty applies to the subsection 1512( b) violation as well, 18 U. S. C. 1512( j).
55 See e. g., United States v. Victor, 973 F. 2d 975, 978 ( 1st Cir. 1992); United States v.
Thompson, 76 F. 3d 442, 452- 53 ( 2d Cir. 1996); United States v. Holt, 460 F. 3d 934, 938 ( 7th
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 officer53
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 10 years, or both. 54
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) with the intent to prevent a witness’s testimony or physical evidence
from being truthfully presented at Congressional or other official federal proceedings
or with the intent to prevent a witness from cooperating with authorities in a matter
relating to a federal offense. 55 It also bans any attempt to so intimidate, threaten, or
CRS- 13
Cir. 2006); United States v. Gurr, 471 F. 3d 144, 154 ( D. C. Cir. 2007); United States v.
Tampas, 493 F. 3d 1291, 1300 ( 11th Cir. 2007).
56 United States v. LaShay, 417 F. 3d 715, 718 ( 7th Cir. 2005)(“ corrupt persuasion occurs
where a defendant tells a potential witness a false story as if the story were true, intending
that the witness believe the story and testify to it”)( very much like the offenses elsewhere
in subsection 1512( b) of “ knowingly . . . engag[ ing] in misconduct toward another person”
with obstructive intent); United States v. Farrell, 126 F. 3d 484, 488 ( 3d Cir. 1997)( emphasis
in the original)(“ Thus, we are confident that both attempting to bribe someone to withhold
information and attempting to persuade someone to provide false information to federal
investigators constitute ‘ corrupt persuasion’ under § 1512( b)”).
57 United States v. Gotti, 459 F. 3d 296, 343 ( 2d Cir. 2006)(“ This Circuit has defined
‘ corrupt persuasion’ as persuasion that is ‘ motivated by an improper purpose.’ United States
v. Thompson, 76 F. 3d 442, 452 ( 2d Cir. 1996). We have also specifically stated that the
Obstruction of Justice Act can be violated by corruptly influencing a witness to invoke the
Fifth Amendment privilege in his grand jury testimony. See United States v. Cioffi, 493
F. 2d 111, 1118 ( 2d Cir. 1974)” ); United States v. Khatami, 280 F. 3d 907, 911- 12 ( 9th Cir.
2002)(“ Synthesizing these various definitions of “ corrupt” and “ persuade,” we note the
statute strongly suggests that one who attempts to “ corruptly persuade” another is, given the
pejorative plain meaning of the root adjective “ corrupt,” motivated by an inappropriate or
improper purpose to convince another to engage in a course of behavior- such as impeding
an ongoing criminal investigation”); United States v. Shotts, 145 F. 3d 1289, ( 11th Cir.
1998)(“ It is reasonable to attribute to the ‘ corruptly persuade’ language in Section 1512( b),
the same well- established meaning already attributed by the courts to the comparable
language in Section 1503( a), i. e., motivated by an improper purpose”).
58 United States v. Burns, 298 F. 3d 523, 540 ( 6th Cir. 2002)(“ Burns attempted to ‘ corruptly
persuade’ Walker by urging him to lie about the basis of their relationship, to deny that
Walker knew Burns as a drug dealer, and to disclaim that Burns was Walter’s source of
crack cocaine”); United States v. Hull, 456 F. 3d 133, ( 3d Cir. 2006)(“ there was ample
evidence from which the jury could conclude that Hull knowingly attempted to corruptly
persuade Rusch, with the intent to change her testimony. See United States v. Farrell, 126
F. 3d 484, 488 ( 3d Cir. 1997)( holding that ‘ corrupt persuasion’ includes ‘ attempting to
persuade someone to provide false information to federal investigators’)”); United States
v. Cruzado- Laureano, 404 F. 3d 470, 487 ( 1st Cir. 2005)(“ Trying to persuade a witness to
give false testimony counts as ‘ corruptly persuading’ under § 1512( b)”); United States v.
Pennington, 168 F. 3d 1060, 1066 ( 8th Cir. 1999)(“ After carefully examining this amendment
and its legislative history, the Third Circuit concluded that the ambiguous term ‘ corruptly
persuades’ includes ‘ attempting to persuade someone to provide false information to federal
investigators.’ United States v. Farrell, 126 F. 3d 484, 488 ( 3d Cir. 1997) ( emphasis in the
original). We agree”).
59 Even though the statute, 18 U. S. C. 1512( f), provides that the obstructed proceedings
need be neither ongoing nor pending at the time of the obstruction, it is “ one thing to say
that a proceeding need not be pending or about to be instituted at the time of the offense, and
quite another to say a proceeding need not even be foreseen. A knowingly . . . corrupt
persuader cannot be someone who persuades others to shred documents under a comment
retention policy when he does not have in contemplation any particular official proceeding
corruptly persuade, id. 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, 56 the motive for persuasion, 57 and the manner of obstruction. 58
Prosecution for obstructing official proceedings under subsection 1512( b)( 2) will
require proof that the defendant intended to obstruct a particular proceeding. 59
CRS- 14
in which those documents might be material,” Arthur Andersen LLP v. United States, 544
U. S. 696, 707- 8 ( 2005); United States v. Vampire Nation, 451 F. 3d 189, 205 ( 3d Cir.
2006)(“ We read this instruction as requiring the jury to find some connection – i. e., a nexus
– between Banks’s actions and an official proceeding in that Banks could not be convicted
unless the jury found he intended to persuade Do to impede an official proceeding, which
official proceeding – given Do’s email regarding his subpoena – Banks was well aware of”);
United States v. Misla- Aldarondo, 478 F. 3d 52, 69 ( 1st Cir. 2007).
60 United States v. Cruzado- Laureano, 404 F. 3d 470 ( 1st Cir. 2005)(“ Cruzado did ask that
they tell the truth; however, his version of ‘ the truth’ that he urged upon them was anything
but the truth”).
61 E. g., United States v. Kellington, 217 F. 3d 1084, 1098- 1100 ( 9th Cir. 2000).
62 E. g., United States v. Gotti, 459 F. 3d 296, 301 ( 2d Cir. 2006)( 18 U. S. C. 1512( b) as a
RICO predicate offense); Sepulveda v. United States, 330 F. 3d 55, 58 ( 1st cir. 2003)( same).
63 P. L. 107- 204, 116 Stat, 807 ( 2000).
64 E. g., United States v. Arbolaez, 450 F. 3d 1283, 1286- 287 ( 11th Cir. 2006)( when federal
agents asked the defendant to identify a cell phone they had seized in a drug trafficking
investigation, the defendant “ grabbed one of the phones, ripped it apart and then he smashed
it on the ground and tried to step on it. This made it impossible to retrieve numbers and
other information through the phone’s display.” The defendant was convicted of violating
subsection 1512( c)).
The attributes common to Section 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( c) 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. 60 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. 61 Conversely, a charge of soliciting a crime of violence or
of using a child to commit a crime of violence 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. 62 And, it likewise is a
separate offense to conspire to violate subsection 1512( b) under either section 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, 63 and proscribes obstruction of
Congressional proceedings, or of federal administrative or judicial proceedings, by
destruction of evidence. 64
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65 18 U. S. C. 1512( c).
66 United States v. Lucas, 499 F. 3d 769, 781 ( 8th Cir. 2007).
67 United States v. Reich, 479 F. 3d 179, 184 ( 2d Cir. 2007).
68 18 U. S. C. 1961, 1956( c)( 7)( A).
69 18 U. S. C. 2, 3, 371, 1512( k), 4.
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. 65
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. 66
As for the necessary nexus between the defendant’s destructive conduct and the
obstructed proceedings: “ 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.’” 67
Like subsection 1512( a) and 1512( b) offenses, subsection 1512( c) offenses are
RICO and money laundering predicate offenses, 68 and may provide the foundation
for criminal liability as a principal, accessory after the fact, conspirator, or one guilty
of misprision. 69 If the federal judicial, administrative or Congressional proceedings
are obstructed, prosecution may be had in the United States even if the destruction
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70 18 U. S. C. 1512( h).
71 18 U. S. C. 1512( f).
72 18 U. S. C. 1512( g).
73 18 U. S. C. 1512( d).
occurs overseas, 70 the proceedings are yet pending, 71 or the offender is unaware of
their federal character. 72
Obstruction by Harassment ( 18 U. S. C. 1512( d)).
The obstruction by harassment prohibition in subsection 1512( d) appeared in
subsection 1512( c) until redesignated by Sarbanes- Oxley, and 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 one year, or both. 73
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74 18 U. S. C. 3571, 3581.
75 Camelio v. American Federation, 137 F. 3d 666, 671- 72 ( 1st Cir. 1998).
76 18 U. S. C. 1961, 1956( c)( 7)( A).
77 18 U. S. C. 2, 3, 371, 1512( k).
78 18 U. S. C. 1512( h).
79 18 U. S. C. 1512( f), ( g).
80 18 U. S. C. 4 (“ Whoever, having knowledge of the actual commission of a felony. . .”).
Crimes punishable by imprisonment for not more than one year are class A misdemeanors,
18 U. S. C. 3581.
81 “ 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, imprisoned
not more than five years or, if the offense involves international or domestic terrorism ( as
defined in section 2331), imprisoned not more than 8 years, or both,” 18 U. S. C. 1505.
The fine of crimes punishable by imprisonment for not more than one year is not
more than $ 100,000 ( not more than $ 200,000 for organizations). 74 The subsection
does not proscribe obstructing a private individual who seeks information of criminal
activity in order to report it to federal authorities. 75
Subsection 1512( d) harassment offenses are RICO and money laundering
predicate offenses. 76 The provisions of law relating to principals, accessories after
the fact, and conspiracy apply with equal force to offenses under subsection
1512( d), 77 as do the provisions elsewhere in Section 1512 relating to extraterritorial
application, 78 and abolition of the need to show pendency or knowledge of the federal
character of the obstructed proceedings or investigation. 79 Subsection 1512( d)
harassment, however, cannot provide the basis for a misprision prosecution since the
subsection’s offenses are not felonies. 80
Obstructing Congressional or Administrative
Proceedings ( 18 U. S. C. 1505)
Section 1505 outlaws interfering with Justice Department civil investigative
demands issued in antitrust cases, 81 but deals primarily with obstructing
Congressional or 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
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82 18 U. S. C. 1505.
83 E. g., United States v. Blackwell, 459 F. 3d 739, 761 ( 6th Cir. 2006); United States v.
Quattrone, 441 F. 3d 153, 174 ( 2d Cir. 2006); United States v. Bhagat, 436 F. 3d 1140, 1146
( 9th Cir. 2006).
84 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); see also, United States v. Blackwell, 459 F. 3d 739, 761- 62 ( 6th Cir.
2006); United States v. Quattrone, 441 F. 3d 153, 174 ( 2d Cir. 2006); United States v.
Bhagat, 436 F. 3d 1140, 1147 ( 9th Cir. 2006).
85 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.
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. 82
Prosecutions under Section 1505 have been relatively few, at least until recently,
and most of these arise as obstructions of administrative proceedings. 83 “ The crime
of obstruction of [ such] proceedings has three essential elements. First, there must
be a proceeding pending . . . 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.” 84
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.” 85 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
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86 United States v. Quattrone, 441 F. 3d 153, 175 ( 2d Cir. 2006)(“ Quattrone’s Brief could
be read as raising a distinction between the informal and formal stages of the SEC
investigation and whether criminal liability for obstructing an agency ‘ proceeding’ can only
arise in the context of the latter. In our view, that argument comes up short”); United States
v. Technic Services, Inc., 314 F. 3d 1031, 1044 ( 9th Cir. 2002)(“ However, the record shows
that TSI’s conduct, while removing the asbestos at the pulp mill, was under investigation by
the EPA at the relevant time. . . An investigation into a possible violation of the Clean Air
Act or Clean Water Act, which could lead to a civil or criminal proceedings is a kind of
proceeding”); 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”).
87 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”).
88 United States v. Leo, 941 F. 2d 181, 199 ( 3d Cir. 1991); United States v. Mitchell, 877
at 299; United States v. Laurins, 857 F. 2d 529, 536- 37 ( 9th Cir. 1988).
89 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
constitutes a proceeding. 86 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). 87
In the case of either Congressional or administrative proceedings, Section 1505
condemns only that misconduct which is intended to obstruct the administrative
proceedings or the due and proper exercise of the power of inquiry. 88 In order to
overcome judicially- identified uncertainty as to the intent required, 89 Congress added
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applied to false statements made directly to Congress).
90 United States v. Blackwell, 459 F. 3d 739, 761 ( 6th Cir. 2006)( submission of inaccurate
information pursuant to an Securities and Exchange Commission subpoena); United States
v. Bhagat, 436 F. 3d 1140, 1149 ( 9th Cir. 2006) ( false statements to SEC investigators);
United States v. Technic Services, Inc., 314 F. 3d 1031, 1044 ( 9th Cir. 2002)( tampering with
air monitoring devices during an Environmental Protection Agency investigation); United
States v. Kelley, 36 F. 3d 1118, 1127- 128 ( D. C. Cir. 1994)( enlisting others to lie to AID
Inspector General’s Office investigators); United States v. Price, 951 F. 2d 1028, 1031 ( 9th
Cir. 1991) ( using threats to avoid an interview with IRS officials; United States v. Leo, 941
F. 2d 181, 198 ( 3d Cir. 1991) ( making false statements to a Defense Department auditor);
United States v. Schwartz, 924 F. 2d 410 ( 2d Cir. 1991)( lying to Customs Service officials);
United States v. Mitchell, 877 F. 2d 294, 299- 300 ( 4th Cir. 1989) ( endeavoring to use family
relationship to obstruct a Congressional investigation); United States v. Laurins, 857 F. 2d
529, 536- 37 ( 9th Cir. 1988)( submitting false documentation in response to an IRS
subpoena).
91 18 U. S. C. 1961( 1), 1956( c)( 7).
92 E. g., United States v. Blackwell, 459 F. 3d 739, 748 ( 6th Cir. 2006).
93 Cf., United States v. Bowman, 260 U. S. 94, 98 ( 1922)(“ We can not suppose that when
Congress enacted the [ fraud] statute or amended it, it did not have in mind that a wide field
for such fraud upon the government was in private and public vessels of the United States
on the high seas and in foreign ports and beyond the land jurisdiction of the United States,
and therefore intend to include them in the section”); Ford v. United States, 273 U,. S. 593,
623 ( 1927) (“ a man who outside of a country willfully puts in motion a force to take effect
in it is answerable at the place where the evil is done”).
94 18 U. S. C. 2, 3, 4. E. g., United States v. Leo, 941 F. 2d 181, 184 ( 3d Cir. 1991).
95 P. L. 97- 291, 96 Stat. 1249, 1250 ( 1982).
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 vary. 90
Section 1505 offenses are not RICO or money laundering predicate offenses. 91
Section 1505 has neither a 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. 371,92 and the courts
would likely find that overseas violations of Section 1505 may be tried in this
country. 93 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. 94
Retaliating Against Federal Witnesses ( 18 U. S. C. 1513)
Congress outlawed retaliation against federal witnesses under Section 1513 at
the same time it outlawed witness tampering under Section 1512.95 Although
somewhat more streamlined, Section 1513 shares a number of attributes with Section
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96 18 U. S. C. 1515( a).
97 18 U. S. C. 1515( a)( 1)(“ 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”).
98 18 U. S. C. 1512( h), 1513( d).
99 “( a) Whoever kills or attempts to kill another person with intent to retaliate against any
person for – ( A) the attendance of a witness or party at an official proceeding, or any
testimony given or any record, document, or other object produced by a witness in an
official proceeding; or ( B) providing to a law enforcement officer any information relating
to the commission or possible commission of a Federal offense or a violation of conditions
of probation supervised release, 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 a killing, the punishment provided in sections 1111 and
1112; and ( B) in the case of an attempt, imprisonment for not more than 20 years . . . ( c)
If the retaliation occurred because of attendance at or testimony in a criminal case, the
maximum term of imprisonment which may be imposed for the offense under this section
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,” 18 U. S. C. 1513( a),( c).
1512. The definitions in Section 1515 apply to both sections. 96 Consequently, the
prohibitions apply to witnesses in judicial, Congressional and administrative
proceedings. 97 There is extraterritorial jurisdiction over both offenses. 98 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, 99 inflicting or threatening to inflict bodily injury, damaging or
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100 “( b) Whoever knowingly engages in any conduct and thereby causes bodily injury to
another person or damages the tangible property of another person, or threatens to do so,
with intent to retaliate against any person for – ( 1) the attendance of a witness or party at an
official proceeding, or any testimony given or any record, document, or other object
produced by a witness in an official proceeding; or ( 2) any information relating to the
commission or possible commission of a Federal offense or a violation of conditions of
probation supervised release, parole, or release pending judicial proceedings given by a
person to a law enforcement officer; or attempts to do so, shall be fined under this title or
imprisoned not more than ten years, or both. ( c) If the retaliation occurred because of
attendance at or testimony in a criminal case, the maximum term of imprisonment which
may be imposed for the offense under this section 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,” 18 U. S. C. 1513( b),( c).
101 “ Whoever conspires to commit any offense under this section shall be subject to the
same penalties as those prescribed for the offense the commission of which was the object
of the conspiracy,” 18 U. S. C. 1513( e)*. There are two subsections 1513( e); one prohibits
economic retaliation and other conspiracy; 1513( e)* is the conspiracy subsection.
Conspiracy to violate Section 1513 may be prosecuted alternatively under 18 U. S. C. 371,
e. g., United States v. Templeman, 481 F. 3d 1263, 1264 ( 10th Cir. 2007).
102 “( e) Whoever knowingly, with the intent to retaliate, takes any action harmful to any
person, including interference with the lawful employment or livelihood of any person, for
providing to a law enforcement officer any truthful information relating to the commission
or possible commission of any Federal offense, shall be fined under this title or imprisoned
not more than 10 years, or both,” 18 U. S. C. 1513( e). The placement of subsection 1513( c)
– after violent proscriptions of subsections 1513( a) and 1513( b), but before the economic
retaliation proscription of subsection 1513( e) – may raise some question over whether
subsection( c) provides an alternative sentencing provision for subsection 1513( e).
Subsection 1513( c) states, “ If the retaliation occurred because of attendance at or testimony
in a criminal case, the maximum term of imprisonment which may be imposed for the
offense under this section 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.”
103 United States v. Tapia, 59 F. 3d 1137, 1140 ( 11th Cir. 1995); United States v. Bolen, 45
F. 3d 140, 142 ( 7th Cir. 1995); United Sates v. Cofield, 11 F. 3d 413, 419 ( 4th Cir. 1994);
United States v. Brown, 937 F. 2d 32, 36 ( 2d Cir. 1991); United States v. Beliveau, 802 F. 2d
553, 562 ( 1st Cir. 1986).
104 United States v. Cunningham, 54 F. 3d 295, 299 ( 7th Cir. 1995).
105 United States v. Maggitt, 794 F. 2d 590, 593- 94 ( 5th Cir. 1986).
threatening to damage property, 100 and conspiracies to do so. 101 It also prohibits
economic retaliation against federal witnesses, but only witnesses in court
proceedings and only on criminal cases. 102 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 Section 1513, the government must prove that the
defendant bodily injured another in retaliation for the victim’s testimony or service
as a government informant. 103 The extent of the injuries need not be extensive, 104 nor
in the case of a threat even carried out. 105 As a general rule, the intent to retaliate
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106 United States v. Molina, 407 F. 3d 511, 529- 30 ( 1st Cir. 2005)(“ there is nothing in Section
1513 that requires retaliation to be the sole motive for a murder. As long as there is
sufficient evidence from which the jury can infer that retaliation was a substantial
motivating factor behind the killing it does not matter that defendant may have had other
motives”).
107 18 U. S. C. 1961( 1), 1956( c)( 7)( A).
108 E. g., United Stats v. Caldwell, 433 F. 3d 378, 384 ( 4th Cir. 2005)( conviction for violation
of 18 U. S. C. 1513, 373 ( solicitation to commit a crime of violence), 1114 ( attempted murder
of an individual assisting federal officers or employees).
109 18 U. S. C. 2.
110 18 U. S. C. 3.
111 18 U. S. C. 4.
112 For addition discussion of Section 1512 see, Twenty- Second Survey of White Collar
Crime: Federal Criminal Conspiracy, 44 AMERICAN CRIMINAL LAW REVIEW 523 ( 2007).
113 United States v. World Wide Moving, 411 F. 3d 502, 516 ( 4th Cir. 2005); United States
v. Ballistrea, 101 F. 3d 827, 832 ( 2d Cir. 1996).
need not have been the sole motivation for the attack. 106
Section 1513 offenses are RICO predicate offenses and consequently money
laundering predicate offenses. 107 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. 108 Those who aid and abet a Section 1513 offense
are liable as principals and are punishable as if they committed the offense
themselves. 109 An individual who knows another has committed a Section 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. 110 And an individual
who affirmatively conceals the commission of a Section 1513 by another is guilty of
misprision. 111
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. 18 U. S. C. 371.112
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 conspirators in furtherance of the scheme. 113 The “ fraud covered by the
statute ‘ reaches any conspiracy for the purpose of impairing, obstructing or defeating
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114 Tanner v. United States, 483 U. S. 107, 128 ( 1987), citing, Dennis v. United States, 384
U. S. 855, 861 ( 1966); Glasser v. United States, 315 U. S. 60, 66 ( 1942); Hammerschmidt v.
United States, 265 U. S. 182, 188 ( 1924); and Haas v. Henkel, 216 U. S. 462, 479 ( 1910).
115 Hammerschmidt v. United States, 265 U. S. at 188 (“ To conspire to defraud the United
States means primarily to cheat the Government out of property or money, but also mens
to interfere with or obstruct one of its lawful governmental functions by deceit, craft or
trickery, or at least by means that are dishonest”); Glasser v. United States, 315 U. S. at 66
(“ The indictment charges that the United States was defrauded by depriving it of its lawful
governmental functions by dishonest means; it is settled that this is a ‘ defrauding. . .’”).
116 Hammerschmidt v. United States, 265 U. S. at 188 (“ It is not necessary that the
government shall be subjected to property or pecuniary loss by the fraud, but only that its
legitimate official action and purpose shall be defeated by misrepresentation. . .”); United
States v. World Wide Moving, 411 F. 3d 502, 516 ( 4th Cir. 2005); United States v. Goldberg,
105 F. 3d 770, 773 ( 1st Cir. 1997); United States v. Ballistrea, 101 F. 3d 827, 832 ( 2d Cir.
1996) ( internal citations omitted) ( This “ provision ‘ not only reaches schemes which deprive
the government of money or property, but also is designed to protect the integrity of the
United States and its agencies’”); United States v. Dean, 55 F. 3d 640, 647 ( D. C. Cir.
1995)( internal citations omitted)( If “ the government’s evidence showed that Dean conspired
to impair the functioning of the department of the Housing and Urban Development, ‘ no
other form of injury to the Federal Government need be established for the conspiracy to fall
under § 371’”).
117 United States v. Snype, 441 F. 3d 119, 142 ( 2d Cir. 2006); see also, United States v.
Munoz- Frnaco, 487 F. 3d 25, 45 ( 1st Cir. 2007); United States v. Mann, 493 F. 3d 484, 492
( 5th Cir. 2007); United States v. Blackwell, 459 F. 3d 739, 760 ( 6th Cir. 2006); United States
v. Soy, 454 F. 3d 766, 768 ( 7th Cir. 2006); United States v. Chong, 419 F. 3d 1076, 1079 ( 9th
Cir. 2005); United States v. Weidner, 437 F. 3d 1023, 1033 ( 10th Cir. 2006); United States
v. Ndiaye, 434 F. 3d 1270, 1294 ( 11th Cir. 2006).
118 United States v. Feola, 420 U. S. 671, 686 ( 1975); United States v. Munoz- Franco, 487
F. 3d 25, 45 ( 1st Cir. 2007); United States v. Soy, 454 F. 3d 766, 768 ( 7th Cir. 2006); United
States v. Weidner, 437 F. 3d 1023, 1033 ( 10th Cir. 2006); cf., United States v. Ching Tang Lo,
447 F. 3d 1212, 1232 ( 9th Cir. 2006).
119 United States v. Soy, 454 F. 3d 766, 768 ( 7th Cir. 2006); United States v. May, 359 F. 3d
683, 694 n. 18 ( 4th Cir. 2004); United States v. Lukens, 114 F. 3d 1220, 1222 ( D. C. Cir.
1997); cf., Braverman v. United States, 317 U. S. 49, 53 ( 1942).
the lawful functions of any department of Government” 114 by “ deceit, craft or
trickery, or at least by means that are dishonest.” 115 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. 116
Conspiracy to Commit a Substantive Offense.
The elements of conspiracy to commit a substantive federal offense are: “( 1) an
agreement between two or more persons to commit a specified federal offense, ( 2)
the defendant’s knowing and willful joinder in that common agreement, and ( 3) some
conspirator’s commission of an overt act in furtherance of the agreement.” 117
Conspirators must be shown to have exhibited the same level of intent as required for
the underlying substantive offense. 118 The overt act need only be furtherance of the
scheme; it need not be the underlying substance offense or even a crime at all. 119
Conspirators are liable for the underlying offense should it be accomplished and for
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120 Pinkerton v. United States, 328 U. S. 640, 646- 48 ( 1946); United States v. Moran, 493
F. 3d 1002, 1009 ( 9th Cir. 2007); United States v. Roberson, 474 F. 3d 432, 433 ( 7th Cir.
2007); United States v. Lake, 472 F. 3d 1247, 1265 ( 10th Cir. 2007).
121 E. g., 18 U. S. C. 1512( k)(“ Whoever conspires to commit any offense under this
subsection shall be subject to the same penalties as those prescribed for the offense the
commission of which was the object of the conspiracy”). Subsection 1513( e) is similarly
worded.
122 Where Congress enacts a conspiracy provision without an explicit overt act requirement
as in the Sherman Act, conviction may be had without proof of an overt act, Whitfield v.
United States, 543 U. S. 209, 212- 14 ( 2005)( construing 18 U. S. C. 1956( h)); United States
v. Shabani, 513 U. S. 10, 14 ( 1994)( construing 21 U. S. C. 846).
123 The Constitution provides that crimes must be tried in the state and district in which they
occur, U. S. Const. Art. II, § 2, cl. 3; Amend. VI. The Supreme Court has said that when the
elements of a crime are committed in more than one state or district the crime may be tried
in any district in which one of its elements is committed, United States v. Rodriguez-
Moreno, 526 U. S. 275, 280- 82 ( 1999). Conspiracies with an overt act element may be tried
anywhere an overt act in furtherance of the conspiracy is committed, United States v.
Cabrales, 524 U. S. 1, 8- 9 ( 1998).
124 2 U. S. C. 192- 196; Anderson v. Dunn, 19 U. S. ( 6 Wheat.) 204 ( 1821); McGrain v.
Daugherty, 273 U. S. 135 ( 1927).
125 For a more extensive discussion of contempt of Congress see CRS Report RL34097,
Congress’s Contempt Power: Law, History, Practice, and Procedure.
any reasonably foreseeable offense committed by a coconspirator in furtherance of
the common plot. 120
As noted earlier, a number of federal statues including sections 1512 and 1513
include within their proscriptions a separate conspiracy feature that outlaws plots to
violate the section’s substantive provisions. 121 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. 122 The disadvantage is that they may lack the venue flexibility afforded by
subsection 371 and other conspiracy provisions that contain an overt act element. 123
Although sections 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 of Congress
Statutory Contempt of Congress. Contempt of Congress is punishable by
statute and under the inherent powers of Congress. 124 Congress has not exercised its
inherent contempt power for some time. 125 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, Section 192 states that
I. Every person
II. summoned as a witness
III. by the authority of either House of Congress
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126 2 U. S. C. 192. By operation of 18 U. S. C. 3571 the maximum fine is $ 100,000 ($ 200,000
for organizations).
127 1 U. S. C. 1 (“ In determining the meaning of any Act of Congress, unless the context
indicates otherwise . . . the words ‘ person’ and ‘ whoever’ include corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as individuals.
. . ”).
128 Sinclair v. United States, 279 U. S. 263, 296 ( 1929).
129 Gojack v. United States, 384 U. S. 702, 713 ( 1966); Sinclair v. United States, 279 U. S.
263, 296 ( 1929).
130 Gojack v. United States, 384 U. S. 702, 714 ( 1966)(“ We do not question the authority of
the Committee appropriately to delegate functions to a subcommittee of its members, nor
do we doubt the availability of § 192 for punishment of contempt before such a
subcommittee in proper cases”).
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. 126
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. 127
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. 128
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. 129 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. 130
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131 Russell v. United States, 369 U. S. 749, 755- 56 ( 1962), citing, Sinclair v. United States,
279 U. S. 263, 273 ( 1929).
132 Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 NEW
YORK UNIVERSITY LAW REVIEW 563, 571 n. 45 ( 1991)(“ Richard Helms ( former Director of
the CIA) and Richard Kleindienst ( former Attorney General) were indicted for giving false
testimony before Congress. Ultimately, each pleaded nolo contendere to violations of 2
U. S. C. § 192 . . . See United States v. Helms, CR. No. 650 ( D. D. C. 1977); United States v.
Kleindienst, CR No. 256 ( D. D. C. 1974); Wash. Post, Nov. 1, 1977, at A4”); a former
Counsel to the Clerk of the House described the two cases in much the same way in House
Judiciary Committee hearings, Prosecution of Contempt of Congress: Hearing Before the
Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the
Judiciary, 98th Cong., 1st Sess. at 29 ( 1983)( prepared statement of Stanley Brand).
133 Flaxer v. United States, 358 U. S. 147, 151 ( 1958)(“ In the Quinn case the witness was
‘ never confronted with a clear- cut choice between compliance and noncompliance, between
answering the question and risking prosecution for contempt.’ The rulings were so imprecise
as to leave the witness to ‘ guess whether or not the committee had accepted his objection.’
. . . We repeat what we said in the Quinn case: Giving a witness a fair apprisal of the
committee’s ruling on an objection recognizes the legitimate interests of both the witness
and the committee.”), quoting Quinn v. United States, 349 U. S. 155, 166 ( 1955); Deutch
v. United States, 367 U. S. 456, 468 ( 1961)(“‘ Unless the subject matter has been made to
appear with undisputable clarity, it is the duty of the investigative body, upon objection of
the witness on grounds of pertinency, to state for the record the subject under inquiry at that
time and the manner in which the propounded questions are pertinent thereto’”), quoting,
Watkins v. United States, 354 U. S. 178, 214- 15 ( 1957).
134 McPhaul v. United States, 364 U. S. 372, 379 ( 1960); United States v. Bryan, 339 U. S.
323, 332- 33 ( 1950).
135 U. S. Const. Amend. V (“ No person . . . shall be compelled in any criminal case to be a
witness against himself. . .”).
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.” 131 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 obstinance. On at least two occasions, however,
apparently the courts have accepted nolo contendere pleas under Section 192 based
upon a false statement predicate. 132
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. 133 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. 134
The Fifth Amendment protects witnesses against self- incrimination. 135 The
protection reaches wherever incriminating testimonial communication is compelled
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136 Watkins v. United States , 354 U. S. 178, 195- 96 ( 1957)(“ It was during this period that
the Fifth Amendment privilege against self- incrimination was frequently invoked and
recognized as legal limit upon the authority of a committee to require that a witness answer
its questions. Some early doubts as to the applicability of that privilege before a legislative
committee never matured. When the matter reached this Court, the Government did not
challenge in any way that the Fifth Amendment protection was available to the witness, and
such a challenge could not have prevailed”).
137 Ohio v. Reiner, 532 U. S. 17, 19 ( 2001)(“ the privilege against self- incrimination applies
where a witness’ answers ‘ could reasonably furnish a link in the chain of evidence’ against
him”), quoting, Hoffman v. United States, 341 U. S. 479, 486 ( 1951); United States v.
Hubbell, 530 U. S. 27, 34 ( 2000)(“ The word ‘ witness’ in the constitutional text limits the
relevant category of compelled incriminating communications to those that are ‘ testimonial’
in character”); Hibel v. Sixth Judicial District Court, 542 U. S. 177, 189 ( 2004).
138 Braswell v. United States, 487 U. S. 99, 107- 108 ( 1988).
139 Under the act of production doctrine, a custodian’s testimonial act of turning over
documents in response to a subpoena is entitled to Fifth Amendment protection if his action
– by confirming the existence of the documents, or his control of them, or his belief that they
came within the description of the documents sought in the subpoena – would incriminate
him or provide a link in the chain leading to his incrimination, United States v. Hubbell, 530
U. S. 27, 36- 8 ( 2000).
140 Fisher v. United States, 425 U. S. 391, 409- 10 ( 1976); United States v. Doe, 465 U. S.
605, 611- 12 ( 1984).
141 Hutcheson v. United States, 369 U. S. 599, 608- 609 ( 1962); Emspak v. United States,
349 U. S. 190, 195- 96 ( 1955).
142 18 U. S. C. 6001- 6005 ( immunity generally), particularly 18 U. S. C. 6005 ( immunity in
Congressional proceedings); Kastigar v. United States, 406 U. S. 441, 462 ( 1972)( upholding
the constitutionality of the immunity statute).
143 Barenblatt v. United States, 360 U. S. 109, 126 ( 1959)( balancing the governmental
interest in investigating Communist activities in the United States against the witness’
interest in the confidentiality of his associations and concluding “ that the balance between
whether in criminal proceedings or elsewhere. 136 It covers communications that are
either directly or indirectly incriminating, but only those that are “ testimonial.” 137
Organizations enjoy no Fifth Amendment privilege from self- incrimination, 138 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. 139 An individual’s voluntarily created papers and records are by
definition not compelled communications and thus ordinarily fall outside the
privilege as well. 140 Moreover, the protection may be waived if not invoked, 141 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. 142
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. 143 Although a subpoena or question clearly in furtherance of a legislative
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the individual and the governmental interests here at stake must be struck in favor of the
latter, and that therefore the provisions of the First Amendment have not been offended”);.
144 Watkins v. United States, 354 U. S. 178, 196- 206 ( 1957).
145 United States v. Rumely, 345 U. S. 41, 46- 8 ( 1953); Watkins v. United States, 354 U. S.
178, 207- 16 ( 1957).
146 U. S. Const. Amend. IV (“ The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”).
147 Watkins v. United States, 354 U. S. 178, 188 ( 1957)( Witnesses “ cannot be subjected to
unreasonable searches and seizures”).
148 Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 208 ( 1946).
149 “ The result therefore sustains the Administrator’s position that his investigative function,
in searching out violations with a view to securing enforcement of the Act, is essentially the
same as the grand jury’s or the courts in issuing other pretrial orders for discovery of
evidence, and is governed by the same limitations. These are that he shall not act arbitrarily
or in excess of his statutory authority, but this does not mean that his inquiry must be limited
by forecasts of the probable result of the investigation,” Id. at 216 ( internal quotation marks
omitted); see also, United States v. Powell, 379 U. S. 48, 57 ( 1964) .
purpose ordinarily carries dispositive weight, the balance may shift to individual
interests when the nexus between Congress’ legitimate purpose and the challenged
subpoena or question is vague or nonexistent. 144 In cases of such imprecision, the
government’s assertion of the pertinence necessary for conviction of statutory
contempt may become suspect. 145
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. 146 The Supreme Court in Watkins confirmed
that witness in Congressional proceedings are entitled to Fourth Amendment
protection, but did not explain what such protection entails. 147 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
sometime 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.” 148 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. 149 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
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150 United States v. R. Enterprises, Inc., 498 U. S. 292, 301 ( 1991). Strictly speaking, R.
Enterprises involves the prohibition against “ unreasonable or oppressive” subpoenas found
in Rule 17( c) of the Federal Rules of Criminal Procedure, a proscription no less demanding
than the Fourth Amendment.
151 McPhaul v. United States, 364 U. S. 372, ( 1960)(“ It thus appears that the records called
for by the subpoena were not ‘ plainly incompetent or irrelevant to any lawful purpose ( of
the Subcommittee) in the discharge of ( its) duties,’ but, on the contrary were reasonably
‘ relevant to the inquiry.’ Finally, petitioner contends that the subpoena was so broad as to
constitute an unreasonable search and seizure in violation of the Fourth Amendment of the
Constitution. ‘( A) dequacy or excess in the breadth of the subpoena are matters variable in
relation to the nature, purposes and scope of the inquiry. The Subcommittee’s inquiry here
was a relatively broad one . . . and the permissible scope of materials that could reasonably
be sought was necessarily equally broad”), citing the Fourth Amendment standard for
administrative searches from Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209
( 1946). See also, Packwood v. Senate Select Committee on Ethics, 510 U. S. 1319, 1320
( 1994)(“ As we stated in Oklahoma Press Publishing Co. v. Walling determining whether
a subpoena is overly broad ‘ cannot be reduced to formula; for relevancy and adequacy or
excess in the breadth of the subpoena are matters variable in relation to the nature, purposes
and scope the inquiry’”)( Ch. J. Rehnquist denying the application for a stay pending appeal
to the Court of Appeals of a District Court order enforcing a Congressional subpoena duces
tecum)( internal citations omitted).
152 United States v. McSurely, 473 F. 2d 1178, 1194 ( D. C. Cir. 1972).
153 “ Whenever a witness summoned as mentioned in Section 192 of this title fails to appear
to testify or fails to produce any books, papers, records, or documents, as required, or
whenever any witness so summoned refuses to answer any question pertinent to the subject
under inquiry before either House, or any joint committee established by a joint or
concurrent resolution of the two Houses of Congress, or any committee or subcommittee of
either House of Congress, and the fact of such failure or failures is reported to either House
while Congress is in session or when Congress is not in session, a statement of fact
constituting such failure is reported to and filed with the President of the Senate or the
Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of
the House, as the case may be, to certify, and he shall so certify, the statement of facts
aforesaid under the seal of the Senate or House, as the case may be, to the appropriate
United States attorney, whose duty it shall be to bring the matter before the grand jury for
its action,” 2 U. S. C. 194.
Dicta in two District of Columbia District Court cases indicate that the United States
Attorney was required to present the matter to the grand jury, United States v. House of
investigation.” 150 The administrative subpoena standard has been cited on the those
infrequent occasions when the validity of a Congressional subpoena has been
challenged on Fourth Amendment grounds. 151 Contempt convictions have been
overturned, however, when a Fourth Amendment violation taints the underlying
subpoena or question. 152
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 Section 192 has a duty to submit the matter to the grand jury. 153 Should
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Representatives, 556 F. Supp. 150, 151 ( D. D. C. 1983); Ex parte Frankfeld, 32 F. Supp. 915,
916 ( D. D. C. 1940). Between the two, however, the Court of Appeals for the District of
Columbia held to be discretionary the similar worded duty of the Speaker, when the House
is not in session, to refer a contempt citation to the United States Attorney, Wilson v. United
States, 369 F. 2d 198, 201- 205 ( D. C. Cir. 1966). It may be argued that similarly worded
duties should be similarly construed and that therefore the United States Attorney’s duty to
refer the case to the grand jury is likewise discretionary.
154 Rule 7( c)( 1) of the Federal Rules of Criminal Procedure requires that indictments be
signed by an attorney for the government as a demonstration of the assent of the government
to go forward without which a prosecution may not be had, United States v. Cox, 342 F. 2d
167, 171 ( 5th Cir. 1965); United States v. Wright, 365 F. 2d 135, 137 ( 7th Cir. 1966). See
also, Watye v. United States, 470 U. S. 598, 607 ( 1985)(“ So long as the prosecutor has
probable cause to believe that the accused committed an offense defined by statute, the
decision whether or not to prosecute, and what charge to file or bring before a grand jury,
generally rests entirely in his discretion”).
155 Yellin v. United States, 374 U. S. 109, 123- 24 ( 1963).
156 The Constitution gives each House the authority to “ determine the rules of its
proceedings,” U. S. Const. Art. I, § 5, cl. 2. The Federal Rules of Evidence as such apply only
to certain judicial proceedings, F. R. Evid. 1101.
157 “ Every person who having been summoned as a witness by the authority of either House
of Congress to give testimony or to produce papers . . . willfully makes default, or who,
having appeared, refuses to answer any question pertinent to the question under inquiry,
shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $ 1,000 nor
less than $ 100 and imprisonment in a common jail for not less than one month nor more
than twelve months,” 2 U. S. C. 192.
158 In 1984, Congress established a uniform fine schedule which amends individual statutory
maximum fine provisions like those of Section 192 sub silentio, 18 U. S. C. 3571. Under the
a grand jury indictment be forthcoming further prosecution is at the discretion of the
Executive Branch in proceedings presided over by the Judicial Branch. 154
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 Section 192. No successful prosecution is
possible if the Congressional tribunal in question has failed to follow its own rules
to the witness’s detriment. 155 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, 156 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 $ 1,000.157 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. 158
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schedule, class A misdemeanors ( crimes punishable by imprisonment for not more than 1
year, 18 U. S. C. 3559) are punishable by a fine of not more than $ 100,000 for individuals
and not more than $ 200,000 for organizations, 18 U. S. C. 3571( b), ( c).
159 Anderson v. Dunn, 19 U. S. ( 6 Wheat.) 204 ( 1821). The original version of 2 U. S. C. 192
appears in 11 Stat. 155 ( 1857).
160 Jurney v. MacCracken, 294 U. S. 125, 151 ( 1935); In re Chapman, 166 U. S. 661, 671- 72
( 1897).
161 In addition to Section 192, some of the misconduct that might have been punished under
Congress’ inherent contempt power may be prosecuted under 18 U. S. C. 1001 ( false
statements), 1621 ( perjury), 1505 ( obstruction of justice before Congressional committees),
or 1512 ( obstruction of justice).
162 Congress does not appear to have called upon its inherent power of contempt since the
mid- 1930’ s, 4 DESCHLER’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 15, § 17
n. 7 ( 1974); Beck, CONTEMPT OF CONGRESS, App. A, at 213 ( 1959).
163 18 U. S. C. 6001- 6005.
164 28 U. S. C. 1365.
Inherent contempt of Congress. Congress’ 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. 159 The statute has always been
recognized as a supplement rather than a replacement of the inherent power. 160 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. 161 The inherent
power lay dormant and does not appear to have been invoked any time within the last
half century. 162
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.
163 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. 164
Obstruction of Justice by Violence or Threat
In addition to the basic six federal crimes of obstruction of justice, federal law
features a host of criminal statutes that proscribe various obstructions according to
the obstructive means used. Thus, several federal statutes outlaw use of threats or
violence to obstruct federal government activities, quite aside from the general
obstruction provisions of sections 1512, 1513, 1505, and 1503.
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165 18 U. S. C. 115( a)( 1)( A).
166 United States v. Bennett, 368 F. 3d 1343, 1352- 354 ( 11th Cir. 2004), vac’d on other
grounds, 543 U. S. 1110 ( 2005).
Violence and Threats Against Officials, Former Officials,
and Their Families ( 18 U. S. C. 115).
Section 115 prohibits certain acts of violence against Members of Congress,
Members- elect, judges, jurors, officials, former officials, and their families in order
to impede the performance of their duties or to retaliate for the performance of those
duties. The section consists of three related offenses. One designed to protect the
families of judges, officials, and Members against threats and acts of violence, 18
U. S. C. 115( a)( 1)( A); another to protect Members, judges and officials from threats,
18 U. S. C. 115( a)( 1)( B); and a third to protect former Members, former judges,
former officials and their families from retaliatory threats and acts of violence, 18
U. S. C. 115( a)( 2). In more precise terms, they declare:
( 1)( Family)
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). 165
Subsection 115( a)( 1)( A) only condemns violence against the families of federal
officials not violence committed against the officials themselves. 166 Subsection
115( b) makes assault, kidnaping, murder, and attempts and conspiracies to commit
such offenses in violation of the section subject to penalties imposed for those crimes
when committed under other sections of the Code, i. e., 18 U. S. C. 111, 1201, 1111,
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167 18 U. S. C. 115( a)( 1)( B), ( b)( 4).
168 United States v. Berki, 936 F. 2d 529, 532- 34 ( 11th Cir. 1991).
169 United States v. Veach, 455 F. 3d 628, 632- 34 ( 6th Cir. 2006).
1113, and 1117. It makes threats to commit an assault punishable by imprisonment
for not more than 6 years and threats to commit any of the other offenses under the
section punishable by imprisonment for not more than 10 years, 18 U. S. C. 115( b)( 4).
A fine of not more than $ 250,000 is available as an alternative or supplementary
sanction in either instance. Id.
( 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. 167
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. 168 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. 169
They were at one point 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
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170 United States v. Saunders, 166 F. 3d 907, 913 n. 6 ( 7th Cir. 1999)(“ Those cases holding
that the test should be an objective speaker- based one include United States v. Schiefen, 139
F. 3d 638, 639 ( 8th Cir. 1998) . . . United States v. Fulmer, 108 F. 3d 1486, 1491- 92 ( 1st Cir.
1997) . . . United States v. Orozco- Santillan, 903 F. 2d 1262, 1265 ( 9th Cir. 1990) . . . and
United States v. Welch, 745 F. 2d 614, 619 ( 10th Cir. 1984). . . Those cases treating the
objective test as recipient- based include United States v. Malik, 16 F. 3d 345, 48 ( 2d Cir.
1994); and United States v. Maisoner, 484 F. 2d 1356, 1358 ( 4th Cir. 1973) ”).
171 United States v. Stewart, 403 F. 3d 1007, 1016- 19 ( 9th Cir. 2005), quoting, Virginia v.
Black, 538 U. S. 343, 349- 50 ( 2003).
172 18 U. S. C. 115( a)( 2).
173 18 U. S. C. 1114 (“ Whoever kills or attempts to kill any officer or employee of the United
States or of any agency in any branch of the United States Government ( including any
member of the uniformed services) while such officer or employee is engaged in or on
account of the performance of official duties, or any person assisting such an officer or
employee in the performance of such duties or on account of that assistance, shall be
punished – ( 1) in the case of murder, as provided under Section 1111; ( 2) in the case of
manslaughter, as provided under Section 1112; or ( 3) in the case of attempted murder or
manslaughter, as provided in Section 1113”).
174 See, United States v. Caldwell, 433 F. 3d 378, 384 ( 2005), affirming the conviction a
defendant who solicited the murder of a government witness on charges of violating 18
U. S. C. 373 ( solicitation of murder), 1114 ( attempted murder), 1512( a) ( witness tampering),
sense of fear. 170 The Ninth Circuit has suggested that the Supreme Court may 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.” 171
( 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. 172
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 of federal officers and
employees as well as those assisting them, committed during or on account of the
performance of their duties. 173 The section’s coverage extends to government
witnesses. 174 Other provisions outlaw kidnaping or assaults against federal officers
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1513 ( witness retaliation), 371 ( conspiracy to murder a government witness).
175 18 U. S. C. 1201( a)( emphasis added)(“ Whoever unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any
person, except in the case of a minor by the parent thereof, when . . . ( 5) the person is among
those officers and employees described in Section 1114 of this title and any such act against
the person is done while the person is engaged in, or on account of, the performance of
official duties . . . the sentence under this section for such offense shall include
imprisonment for not less than 20 years”); 111 ( emphasis added) (“ Whoever– ( 1) forcibly
assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in
Section 1114 of this title while engaged in or on account of the performance of official
duties; or ( 2) forcibly assaults or intimidates any person who formerly served as a person
designated in Section 1114 on account of the performance of official duties during such
person's term of service, shall, where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more than one year, or both, and
in all other cases, be fined under this title or imprisoned not more than 8 years, or both”).
176 18 U. S. C. 351.
177 E. g., 7 U. S. C. 60 ( assault designed to influence administration of federal cotton standards
program), 87b ( assault designed to influence administration of federal grain standards
program), 473c- 1 ( assaults on cotton samplers to influence administration of federal cotton
standards program), 511i ( assaults on designed to influence administration of federal
tobacco inspection program), 2146 ( assault of United States animal transportation
inspectors); 15 U. S. C. 1825( a)( 2)( C) ( assaults on those enforcing the Horse Protection Act));
16 U. S. C. 773e ( assaults on officials responsible for enforcing the Northern Pacific Halibut
Act), 973c ( assaults on officials responsible for enforcing the South Pacific tuna convention
provisions), 1417 ( assaults on officials conducting searches or inspections with respect to
the global moratorium on tuna harvesting practices), 1436 ( assaults on officials conducting
searches or inspections with respect to the marine sanctuaries), 1857, 1859 ( assaults on
officials conducting searches or inspections with respect to the federal fisheries management
and conservation program), 2403, 2408 ( assaults on federal officials conducting searches
or inspections on vessels subject to the jurisdiction of the United States with respect
Antarctic conservation), 2435 ( assaults on federal officials conducting searches or
inspections on vessels subject to the jurisdiction of the United States in enforcement of the
Antarctic Marine Living Resources Convention), 3637 ( assaults on federal officials
conducting searches or inspections on vessels subject to the jurisdiction of the United States
with respect Pacific salmon conservation), 5009 ( assaults on federal officials conducting
searches or inspections on vessels subject to the jurisdiction of the United States with
respect North Pacific anadromous stock conservation), 5505 ( assaults on federal officials
conducting searches or inspections on vessels subject to the jurisdiction of the United States
with respect high seas fishing compliance), 5606 ( assaults on federal officials conducting
searches or inspections on vessels subject to the jurisdiction of the United States with
respect Northwest Atlantic Fisheries Convention compliance); 18 U. S. C. 1501 ( assault on
a server of federal process), 1502 ( assaulting a federal extradition agent); 21 U. S. C. 461( c)
( assaulting federal poultry inspectors), 21 U. S. C. 675 ( assaulting federal meat inspectors),
and employees committed during or account of the performance of their duties, but
their coverage of those assisting them is less clear. 175
Beyond these general prohibitions, federal law proscribes the murder, kidnaping,
or assault of Members of Congress, Supreme Court, or the Cabinet; 176 and a number
of statutes outlaw assaults on federal officers and employees responsible for the
enforcement of particular federal statutes and programs. 177
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21 U. S. C. 1041( c) ( assaulting federal egg inspector); 30 U. S. C. 1461 ( assaults on officials
conducting searches or inspections with respect to the Deep Seabed Hard Mineral Resources
Act); 42 U. S. C. 2000e- 13 ( assaulting EEOC personnel), 2283 ( assaulting federal nuclear
inspectors).
178 The difference between bribes and gratuities under section 201 is that “ for bribery there
must be a quid pro quo – a specific intent to give or receive something of value in exchange”
for testimony or a vote in the jury room. “ An illegal gratuity, on the other hand, may
constitute merely a reward for some” past or future testimony or jury service, United States
v. Sun- Diamond Growers, 526 U. S. 398, 404- 405 ( 1999). Section 201 outlaws both but
punishes bribery more severely. For addition discussion of Section 1512 see, Twenty-
Second Survey of White Collar Crime: Public Corruption, 44 AMERICAN CRIMINAL LAW
REVIEW 855 ( 2007).
179 Id. at 404. The Court’s opinion refers to public officials rather than jurors. Section
201defines public officials to include jurors, 18 U. S. C. 201( a)( 1). Subsections 201( b)( 1),( 2)
provide that “ Whoever – ( 1) directly or indirectly, corruptly gives, offers or promises
anything of value to any public official or person who has been selected to be a public
official, or offers or promises any public official or any person who has been selected to be
a public official to give anything of value to any other person or entity, with intent – ( A) to
influence any official act; or ( B) to influence such public official or person who has been
selected to be a public official to commit or aid in committing, or collude in, or allow, any
fraud, or make opportunity for the commission of any fraud, on the United States; or ( C) to
induce such public official or such person who has been selected to be a public official to
do or omit to do any act in violation of the lawful duty of such official or person; ( 2) being
a public official or person selected to be a public official, directly or indirectly, corruptly
demands, seeks, receives, accepts, or agrees to receive or accept anything of value
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
statute is 18 U. S. C. 201 which prohibits bribing Members of Congress, other federal
officials, employees, jurors and witnesses. 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 section 201. The Hobbs Act, 18
U. S. C. 1951, condemns public officials who use their position for extortion. A few
other statutes, noted below, outlaw bribery to obstruct specific governmental
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. 178 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).” 179 In the case of witnesses, subsection 201( b)( 3) as to the giver and
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personally or for any other person or entity, in return for: ( A) being influenced in the
performance of any official act; ( B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the
United States; or ( C) being induced to do or omit to do any act in