| 1.
|
Black's describes obstruction of justice simply
as any "interference with the orderly administration of law and
justice," Black's Law Dictionary, 1183 (9th ed. 2009). |
| 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 Rept. 98-808, Perjury Under Federal Law: A Brief Overview, and CRS Rept. 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 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 18 U.S.C. 1512 see Twenty-Eighth Survey of White Collar Crime: Obstruction of Justice, 50 American Criminal Law Review 1299 (2013). |
| 6.
|
Here and throughout this report the outline of the statute's elements uses the language of the statute wherever possible. |
| 7.
|
18 U.S.C. 1512(a)(3)(A). |
| 8.
|
18 U.S.C. 1512(a)(3)(B). |
| 9.
|
18 U.S.C. 1512(a)(3)(C). Other than the murder offenses,
violations of subsection 1512(a) are also punishable by a fine of not
more than $250,000, 18 U.S.C. 1512(a)(3), 1111, 1112, 3571. |
| 10.
|
"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). |
| 11.
|
Fowler v. United States, 131 S.Ct. 2045, 2049 (2011). |
| 12.
|
United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011); see generally CRS Rept. R42001, Attempt: An Overview of Federal Criminal Law. |
| 13.
|
"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). |
| 14.
|
The Sarbanes-Oxley Act redesignated subsection
1512(d)(2000 ed.) as subsection 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 States v. Thompson, 76 F.2d
442 (2d Cir. 1996)(upholding the constitutionality of the defense in the
face of a challenge that it unconstitutionally shifted the burden of
proof to the accused); United States v. Arias, 253 F.3d 453, 457 n.4 (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)" ). |
| 15.
|
See also United States v. Tyler, 732 F.3d 241, 252 (3d Cir. 2013)("Nevertheless, just as Fowler
specifically noted that §1512 reaches conduct that occurs before the
victim had any communications with law enforcement officers, here, too,
we emphasize that the government need not prove that a federal
investigation was in progress at the time the defendant committed a
witness-tampering offense"), citing, Fowler v. United States, 131 S.Ct. 2045, 2049(2011); and United States v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012). |
| 16.
|
Arthur Anderson, LLP v. United States, 544 U.S. 696, 707-8 (2005). |
| 17.
|
United States v. Tyler, 732 F.3d 241, 248, 249-50 (3d Cir. 2013)(internal citations omitted)("The Supreme Court's decision in Arthur Andersen
required that for the government to satisfy the VWPA's witness
intimidation section's 'official proceeding' requirement, §1512(b)(2)(A
and (B), it must prove a 'nexus' between the defendant's conduct and a
foreseeable particular proceeding. Specifically, the government must
prove that the defendant sought to interfere with evidence or a witness
and acted in contemplation of a particular official proceeding. If the
defendant lacks knowledge that his actions are likely to affect the
official proceeding, then he lacks the requisite intent to obstruct. The
'"official proceeding' language is also contained in §1512(a)(1)(A),
(b)1), and (b), the provisions under which Tyler was convicted.... [I]n
any prosecution brought under a §1512 provision charging obstruction of
justice involving an 'official proceeding,' the government is required
to prove a nexus between the defendant's conduct and a particular
official proceeding before a judge or court of the United States that
the defendant contemplated. This holding is in line with our sister
Circuits that have all concluded that the nexus requirement applies to
other §1512 provisions qualified by an official proceeding"), citing, United States v. Kaplan, 490 F.3d 110, 126 (2d Cir. 2007)(§1512(b)(1)); United States v. Matthews, 505 F.3d 698, 707-708 (7th Cir. 2007)(§1512(c)(1)); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir. 2011)(§1512(c)(2)); United States v. Fiske, 640 F.3d 1288, 1292 (11th Cir. 2011)(same); United States v. Phillips, 583 F.3d 1261, 1263-1264 (10th Cir. 2010)(same); and United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009)(same). |
| 18.
|
Fowler v. United States, 131 S.Ct. 2045, 2052 (2011); United States v. Tyler, 732 F.3d 241, 248 (3d Cir. 2013); United States v. Smith, 723 F.3d 510, 514 (4th Cir. 2013). |
| 19.
|
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). |
| 20.
|
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). |
| 21.
|
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 cannot 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"). |
| 22.
|
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. 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). |
| 23.
|
See generally CRS Rept. 94-166, Extraterritorial Application of American Criminal Law. |
| 24.
|
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 the obstruction occurs elsewhere within the
United States and there is no conduct element committed within 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. Clenney, 434 F.3d 780, 781-82 (5th Cir. 2005); 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. |
| 25.
|
See e.g., United States v. Bergin, 682 F.3d 261, 264 n.2 (3d Cir. 2012). |
| 26.
|
See generally CRS Report R41223, Federal Conspiracy Law: A Brief Overview. |
| 27.
|
18 U.S.C. 371. |
| 28.
|
E.g., Whitfield v. United States, 543 U.S. 209, 214-15 (2004); United States v. Shabani, 513 U.S. 10, 17 (1994). |
| 29.
|
Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Grasso, 724 F.3d 1077, 1089 (9th Cir. 2013); United States v. Walker, 721 F.3d 828, 836 (7th Cir. 2013); United States v. Ali, 718 F.3d 929, 941 (D.C. Cir. 2013). |
| 30.
|
See e.g., United States v. Bergin, 682
F.3d 261, 264 n.2 (3d Cir. 2012)(" ... Count 13 charges that Bergin
'knowingly and intentionally ... counsel[ed] and induced[d] others to
kill' Kemo with 'malice aforethought and with intent to prevent' his
testimony in violation of 18 U.S.C. §1512(a)(1)(A)"). |
| 31.
|
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"). |
| 32.
|
Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); United States v. Rufai, 732 F.3d 1175, 1338 (10th Cir. 2013); United States v. Davis, 717 F.3d 28, 33 (1st Cir. 2013); 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 by
another; (2) guilty knowledge; (3) that the other was committing an
offense; and (4) assisting or participating in the commission of the
offense"). |
| 33.
|
United States v. Rufai, 732 F.3d at 1338; United States v. Davis, 717 F.3d at 33; United States v. Cain, 671 F.3d 271, 302 (2d Cir. 2012). |
| 34.
|
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 ... "). |
| 35.
|
United States v. Gerhard, 615 F.3d 7, 23 (1st Cir. 2010); 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). |
| 36.
|
United States v. Boyd, 640 F.3d 657, 668 (6th Cir. 2011); 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). |
| 37.
|
United States v. Taylor, 322 F.3d 1209, 1211-212 (9th Cir. 2003). |
| 38.
|
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"). |
| 39.
|
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"). |
| 40.
|
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); see also Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir. 2008); see also United States v. Boyd, 640 F.3d 657, 668 (6th
Cir. 2011)("To sustain a conviction for misprision of felony, the
Government must prove beyond a reasonable doubt that principal committed
the felony alleged"). |
| 41.
|
18 U.S.C. 4. Unless otherwise provided, all federal crimes
with a maximum penalty of imprisonment of more than one year are
subject to a fine of not more than $250,000 for individual defendants
and not more than $500,000 for organizational defendants, 18 U.S.C.
3571. |
| 42.
|
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"). See e.g., United States v. Fisher, 494 F.3d 5, 7-8 (1st
Cir. 2007)(uphold 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)"). |
| 43.
|
United States v. Caira, 737 F.3d 455, 463 (7th Cir. 2013); United States v. Hackley, 662 F.3d 671, 682 (4th Cir. 2011); United States v. Bunchan, 626 F.3d 29, 33 (1st Cir. 2010). |
| 44.
|
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"). |
| 45.
|
18 U.S.C. 373. |
| 46.
|
18 U.S.C. 1961-1963. |
| 47.
|
18 U.S.C. 1961. |
| 48.
|
Id. E.g., Sotirion v. United States, 617 F.3d 27, 29 (1st Cir. 2010); United States v. Royer, 599 F.3d 886, 889 (2d Cir. 2010). |
| 49.
|
18 U.S.C. 1963. For a general discussion of RICO see Twenty-Eighth Survey of White Collar Crime: Racketeer Influenced and Corrupt Organizations, 50 American Criminal Law Review 1423 (2013); and CRS Rept. 96-950, RICO: A Brief Sketch. See also 18 U.S.C. 1959 which outlaws violent crimes in aid of racketeering. |
| 50.
|
18 U.S.C. 1956. |
| 51.
|
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 of the predicate
offenses identified in Section 1956, 18 U.S.C. 1957(f). |
| 52.
|
18 U.S.C. 1956, 981, 982. For a general discussion of the money laundering statutes see Twenty-Eighth Survey of White Collar Crime: Money Laundering, 50 American Criminal Law Review 1271 (2013); and CRS Report RL33315, Money Laundering: An Overview of 18 U.S.C. 1956 and Related Federal Criminal Law. |
| 53.
|
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"). |
| 54.
|
Offenders face a fine and term of imprisonment twice that of the offense committed by the child, 18 U.S.C. 25(b). |
| 55.
|
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). |
| 56.
|
Offenders face a term of imprisonment ranging from
imprisonment for not less than five 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)). |
| 57.
|
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). |
| 58.
|
Offenders face a term of imprisonment of not more than 20 years, 18 U.S.C. 1028(b)(3). |
| 59.
|
Offenders face death or a term of imprisonment based upon
the nature of the violence committed. Thus, for example, murder in
violation of §1959 is punishable by death or life imprisonment;
attempted murder by imprisonment for not more than 10 years, 18 U.S.C.
1959(a)(1), (a)(5). In United States v. Ramos-Cruz, 667 F.3d 487, 492, 494 (4th
Cir. 2012), the Fourth Circuit upheld the conviction of a defendant
convicted of RICO conspiracy (18 U.S.C. 1962); assault with a dangerous
weapon in aid of racketeering (18 U.S.C. 1959(a)(3)); conspiracy to
murder in aid of racketeering (18 U.S.C. 1959(a)(5)); murder in aid of
racketeering (18 U.S.C. 1959(a)(1)); murderous witness-tampering(18
U.S.C. 1512(a)(1)(C); carrying and using a firearm during a crime of
violence (18 U.S.C. 924(c)); murder resulting from carrying and using a
firearm during a crime of violence (18 U.S.C. 924(j)); and possession of
a firearm by an illegal alien (18 U.S.C. 922(g)(5)(A), 924(a)(2)). |
| 60.
|
"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). |
| 61.
|
"(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). |
| 62.
|
"(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). |
| 63.
|
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). |
| 64.
|
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 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); United States v. Carson, 560 F.3d 566, 580 (6th Cir. 2009); United States v. Eads, 729 F.3d 769, 779 (7th Cir. 2013). |
| 65.
|
18 U.S.C. 1512(b). |
| 66.
|
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)"). |
| 67.
|
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, 1301 (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"). |
| 68.
|
United States v. Baldridge, 559 F.3d 1126, 1143 (10th
Cir. 2009)("[T]he 'corruptly persuades' element requires the government
to prove a defendant's action was done voluntarily and intentionally to
bring about false or misleading testimony or to prevent testimony with
the hope or expectation of some benefit to the defendant or another
person"); United States v. Hull, 456 F.3d 133, 142 (3d Cir.
2006)("[T]here 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. 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. 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"). |
| 69.
|
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 in which those
documents might be material," Arthur Andersen LLP v. United States, 544 U.S. 696, 707-8 (2005); United States v. Tyler,
732 F.3d 241, 248 (3d Cir. 2013)("[T]he government must prove that the
defendant sought to interfere with evidence or a witness and acted in
contemplation of a particular official proceeding. If the defendant
lacks knowledge that his actions are likely to affect the official
proceeding, then he lacks the requisite intent to obstruct"); United States v. Misla-Aldarondo, 478 F.3d 52, 69 (1st Cir. 2007). |
| 70.
|
United States v. Carson, 560 F.3d 566, 580 (6th
Cir. 2009)("For violation of §1512(b)(3), it is sufficient if the
misleading information is likely to be transferred to a federal agent");
United States v. Ronda, 455 F.3d 1273, 1288 (11th Cir. 2006)("Arthur Andersen
interpreted and applied only §1512(b)(2), which explicitly requires
that the acts of obstruction relate to an official proceeding. Unlike
§1512(b)(2), §1512(B)(3) makes no mention of an official proceeding and
does not require that a defendant's misleading conduct relate in any way
either to an official proceeding or even to a particular ongoing
investigation.... There is simply no reason to believe that the Supreme
Court's holding in Arthur Andersen requires that we graft onto
§1512(b)(3) an official proceeding requirement based on statutory
language in §1512(b)(2) that does not appear in §1512(b)(3). As we
already noted in [United States v. Veal, 153 F.3d 1233 (11th
Cir. 1998)], the federal nexus required under §1512(b)(2) is distinct
from that required under §1512(b)(3). Unlike the stricter an official
proceeding requirement that appears in §1512(b)(2), §1512(b)(3) requires
only that a defendant intended to hinder, delay, or prevent
communication to any law enforcement officer or judge of the United
States. Id. at 1248. This distinction was critical to our decision in Veal that §1512(b)(3) requires only the possible existence of a federal crime and a defendant's intention to thwart an inquire into that crime. Veal, 153 F.3d at 11250. As we explained in Veal, §1512(b)(3) criminalizes the transfer of misleading information which actually relates to a potential federal offense ... Veal, 153 F.3d at 1252 (emphasis in the original)"); cf., United States v. Byrne, 435 F.3d 16, 25 (1st
Cir. 2006)("If the defendant's contention is that the government must
prove the possible existence of a federal crime and a defendant's
intention to thwart an inquiry into that crime by officials who happen
to be federal, we continue to agree. If the defendant suggests that Arthur Andersen
requires a heightened showing of a nexus in a §1512(b)(3) prosecution,
between the intent to hinder communications and a particular law
enforcement agency, we express our doubts but defer any final judgment
for a future case that requires resolution of that issue"). |
| 71.
|
United States v. Williams, 825 F.Supp.2d 128, 134-38 (D.C.Cir. 2011); cf., United States v. Tyler, 732 F.3d 241, 249-52 (3d Cir. 2013). |
| 72.
|
United States v. Guadalupe, 402 F.3d 409, 412 (3d
Cir. 2005)(This last element may be inferred from the fact the offense
was federal in nature, plus 'additional appropriate evidence.' An
example of this 'additional appropriate evidence' is that the defendant
had actual knowledge of the federal nature of the offense"); cf., United States v. Lopez,
372 F.3d 86, 91-92 (2d Cir. 2004)(citing examples of additional
appropriate evidence necessary in law enforcement obstruction element in
the context of a subsection 1512(a) prosecution (obstruction through
murder or physical force)). |
| 73.
|
United States v. Eads, 729 F.3d 769, 780 (7th Cir. 2013); 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"). |
| 74.
|
E.g., United States v. Kellington, 217 F.3d 1084, 1098-1100 (9th Cir. 2000). |
| 75.
|
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). |
| 76.
|
P.L. 107-204, 116 Stat, 807 (2000). |
| 77.
|
18 U.S.C. 1512(c); 1515(a)(1). |
| 78.
|
18 U.S.C. 1512(c); e.g., United States v. Freeman, 741 F.3d 426, 437-38 (4th Cir. 2014). |
| 79.
|
United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013). |
| 80.
|
United States v. Mann, 701 F.3d 274, 305-306 (8th Cir. 2012). |
| 81.
|
United States v. Watters, 717 F.3d 733, 734-36 (9th Cir. 2013)(finding it unnecessary to decide what "corruptly" means, but suggesting that "consciousness of wrongdoing"—the Arthur Anderson interpretation of "knowingly corruptly"—places too heavy a burden on the government). |
| 82.
|
United States v. Ermonian, 727 F.3d 894, 898-902 (9th
Cir. 2013)(holding that such investigations do not constitute official
proceedings but acknowledging contrary authority in the Fifth (United States v. Ramos, 537 F.3d 439 (5th Cir. 2008)) and Second United States v. Gonzalez, 922 F.2d 1044 (2d Cir. 1991)) Circuits); see also United States v. Burge, 711 F.3d 803, 808-10 (7th
Cir. 2013)(rejecting the argument that taking a deposition in
conjunction with federal civil litigation rested beyond the reach of
§1512(c)). |
| 83.
|
United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); United States v. Simpson, 741 F.3d 539, 552 (5th
Cir. 2014)(internal citations omitted)(""Though a proceeding need not
be actually pending at the time of the obstructive act, an obstruction
of justice conviction requires some nexus between the obstructive act
and some official government proceeding. A proceeding must at least be
foreseen, such that the defendant has in contemplation some particular
official proceeding in which the destroyed evidence might be material");
United States v. Desposito, 704 F.3d 221, 230-31 (2d Cir. 2013); United States v. Ahrensfield, 698 F.3d 1310, 1324 (10th Cir. 2012); see also United States v. Townsend, 630 F.3d 1003, 1015 n. 8 (11th
Cir. 2011)(observing without comment that the trial court's instruction
to the jury that, "the defendant can be found guilty of that offense
only if all the following facts are proved beyond a reasonable doubt ...
Four that the natural and probable effect of the defendant's conduct
would be the interference with the due administration of justice"). |
| 84.
|
United States v. Burge, 711 F.3d 803, 812 n.4 (7th Cir. 2013). |
| 85.
|
United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007); United States v. Gordon, 710 F.3d 1124, 1150 (10th
Cir. 2013)("Thus, [for attempt] the government was required to prove
beyond a reasonable doubt (1) that Mr. Gordon intended to 'corruptly'
obstruct an official proceeding ... and (2) that he committed a
substantial step toward the commission of the intended obstruction"). |
| 86.
|
18 U.S.C. 1961, 1956(c)(7)(A). |
| 87.
|
18 U.S.C. 2, 3, 371, 1512(k), 4; see e.g., United States v. Mann, 685 F.3d 714, 722 (8th Cir. 2012)(conspiracy and aiding and abetting). |
| 88.
|
18 U.S.C. 1512(h). |
| 89.
|
18 U.S.C. 1512(f); United States v. Ahrensfield, 698 F.3d 1310, 1324 (10th Cir. 2012). |
| 90.
|
18 U.S.C. 1512(g); United States v. Ahrensfield, 698 F.3d at 1324. |
| 91.
|
Section 1102, P.L. 107-204, 116 Stat. 807 (2002). |
| 92.
|
18 U.S.C. 1512(d). |
| 93.
|
18 U.S.C. 3571, 3581. |
| 94.
|
Camelio v. American Federation, 137 F.3d 666, 671-72 (1st Cir. 1998). |
| 95.
|
18 U.S.C. 1961, 1956(c)(7)(A). |
| 96.
|
18 U.S.C. 2, 3, 4, 371, 1512(k). |
| 97.
|
18 U.S.C. 1512(h). |
| 98.
|
18 U.S.C. 1512(f), (g). |
| 99.
|
Both sections are discussed in Twenty-Eighth Survey of White Collar Crime: Obstruction of Justice, 50 American Criminal Law Review 1299 (2013). |
| 100.
|
United States v. Aguilar, 515 U.S. 593, 599 (1995), citing Pettibone v. United States, 148 U.S. 197, 207 (1893); but see conflicted lower appellate court opinions cited infra footnote 111. |
| 101.
|
18 U.S.C. 1503(a). |
| 102.
|
18 U.S.C. 1503(b). 18 U.S.C. 1111 outlaws murder within
the special maritime and territorial jurisdiction of the United States.
First degree murder under §1111 is punishable by death or life
imprisonment; second degree by imprisonment for any term of years or for
life, 18 U.S.C. 1111(b). 18 U.S.C. 1112 outlaws manslaughter within the
special maritime and territorial jurisdiction of the United States.
Voluntary manslaughter under §1112 is punishable by imprisonment for not
more than 10 years and a fine of not more than $250,000; involuntary
manslaughter by imprisonment for not more than six years and a fine of
not more than $250,000. |
| 103.
|
18 U.S.C. 1503(b)(2). Class A felonies are those
punishable by imprisonment for any term of years or by life
imprisonment; Class B felonies are those punishable by a maximum term of
imprisonment greater than 20 years, 18 U.S.C. 3581. All felonies are
punishable by a fine of not more than $250,000 ($500,000 for
organizations), 18 U.S.C. 3571. |
| 104.
|
18 U.S.C. 1503(b)(3). |
| 105.
|
United States v. Monus, 128 F.3d 376, 387 (6th Cir. 1997); see also United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009); United States v. Macari, 545 F.3d 517, 522-23 (7th Cir. 2008); United States v. Richardson, 676 F.3d 491, 502 (5th Cir. 2012); United States v. Brenson, 104 F.3d 1267, 1275 (11th Cir. 1997). |
| 106.
|
United States v. Sussman, 709 F.3d 155, 168 (3d
Cir. 2013)("Under 18 U.S.C. §1503(a), the elements of a prima facie case
of obstruction of justice are (1) the existence of a judicial
proceeding; (2) knowledge or notice of the pending proceeding; (3)
acting corruptly with the intent of influencing, obstructing, or
impeding the proceeding in the due administration of justice: and (4)
the action had the natural and probable effect of interfering with the
due administration of justice"); United States v. Thomas, 612 F.3d 1107, 1128-129 (9th Cir. 2010). |
| 107.
|
United States v. Aguilar, 515 U.S. 593, 599 (1995), quoting Pettibone v. United States, 148 U.S. 197, 206 (1893). |
| 108.
|
United States v. Aguilar, 515 U.S. at 599, 600; United States v. Richardson, 676 F.3d 491, 503 (5th Cir. 2012); United States v. Blair, 661 F.3d 755, 766 (4th Cir. 2011); United States v. Macari, 453 F.3d 926, 939 (7th Cir. 2006); United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006); United States v. McBride, 362 F.3d 360, 372 (6th Cir. 2004); United States v. Muhammad, 125 F.3d 608, 620 (8th
Cir. 1997). Perhaps since an endeavoring-to-obstruct charge covers both
successful and unsuccessful endeavors and therefore eliminates the need
to prove success, prosecutors ordinarily charge an endeavor to obstruct
or impede, even if there is evidence of success and a charge of simple
obstruction might have been brought. |
| 109.
|
United States v. Tackett, 113 F.3d 603, 611 (6th
Cir. 1997)("Although the omnibus clause of §1503 requires that a
defendant's actions were intended to obstruct an actual judicial
proceeding, the government need not prove that the actions had their
intended effect. Furthermore, an endeavor to obstruct justice violates
the law even if, unbeknownst to the defendant, the plan is doomed to
failure from the start"), citing United States v. Osborn, 385 U.S. 323, 333 (1966). |
| 110.
|
United States v. Aguilar, 515 U.S. 593, 599 (1995), citing United States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993), and United States v. Walasek, 527 F.2d 676, 679 (3d Cir. 1975); see also United States v. Bonds, 730 F.3d 890, 897 (9th Cir. 2013); United States v. Ashqar, 582 F.3d 819, 823 (7th Cir. 2009); United States v. Johnson, 485 F.3d 1264, 1270 (11th Cir. 2007); United States v. Quattrone, 441 F.3d 153, 170-71 (2d Cir. 2006); United States v. Joiner, 418 F.3d 863, 868 (8th Cir. 2005). |
| 111.
|
United States v. Quattrone, 441 F.3d 153, 170 (2d
Cir. 2006)(emphasis added)("In order to convict for obstruction of
justice under the omnibus clause of Section 1503, the government must
establish (1) that there is a pending judicial or grand jury proceeding constituting the administration of justice ... "); accord United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009); United States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003); United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003); United States v. Steele, 241 F.3d 302, 304-5 (3d Cir. 2001); United States v. Sharpe, 193 F.3d 852, 864 (5th Cir. 1999); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999); United States v. Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1966); United States v. Littleton, 76 F.3d 614, 618-19 (4th Cir. 1996); contra United States v. Novak, 217 F.3d 566, 571-72 (8th Cir. 2000); see also United States v. Vaghela, 169 F.3d 729, 732-34 (11th Cir. 1999)(pendency not necessarily required in cases of conspiracy to violate Section 1503); United States v. Bruno,
383 F.3d 65, 87 (2d Cir. 2004)(proceedings need not be pending but
there must be evidence from which to infer that they were anticipated in
the case of a conspiracy to violate Section 1503). |
| 112.
|
United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991). |
| 113.
|
United States v. Tackett, 113 F.3d 603, 607 (6th
Cir. 1997) ("The Second Circuit has held that the enactment of new
witness protection laws in 1982 and 1988 means that the government must
prosecute witness tampering under the new law, 18 U.S.C. §1512, rather
than under §1503. The other circuits that have addressed the issue have
reached the opposite conclusion. See United States v. Malone, 71 F.3d 645, 659 (7th
Cir. 1995)(noting that Fourth, Ninth and Eleventh Circuits have held
that the omnibus clause of §1503 continues to cover witness tampering; United States v. Kenny, 973 F.2d 339, 342-43 (4th Cir. 1992)(noting the same for First, Fifth, Eighth and Ninth Circuits)"); see also United States v. Ladum, 141 F.3d 1328, 1337-338 (9th Cir. 1998); United States v. LeMoure, 474 F.3d 37, 40-41 (1st Cir. 2007). |
| 114.
|
United States v. Kumar, 617 F.3d 612, 622 n. 9
(2d Cir. 2010)(internal citations omitted)("The government may have
charged Richards with violating §1512(c)(2) instead of §1503(a) due to
its concern that a §1503(a) charge would raise a 'Masterpol issue.' In Masterpol,
we held that witness tampering is prohibited only by §1512, and is not
covered by §1503's omnibus clause. The government's concern with respect
to Richards's obstruction charge was misplaced. While Masterpol
might have presented an obstacle for indicting Kumar, who attempted to
bribe a witness, as previously noted, Kumar is not appealing his
obstruction of justice conviction. Unlike Kumar, Richards did not engage
in witness tampering. Thus, Masterpol is not implicated here"); United States v. Bruno,
383 F.3d 65, 87 n.16 (2d Cir. 2004)("Because the defendants were
prosecuted for lying to federal investigators instead of federal grand
jury witnesses, we had no occasion to address the issue discussed above
regarding our conclusion in Masterpol that charges of lying to, or trying to influence grand jury witnesses should be prosecuted under §1512"); United States v. Genao,
343 F.3d 578, 585 (2d Cir. 2003)("We hold that the indictment in the
instant case does not set forth a sufficient nexus between Genao's false
statements and a federal judicial proceeding so as to establish a
violation of §1503"); United States v. Schwarz, 283 F.3d 76, 110 (2d Cir. 2002); United States v. Quattrone,
441 F.3d 153, 169-73 (2d Cir. 2006)(finding evidence sufficient to
establish a nexus between the defendant's destruction of documents and
the grand jury proceedings for which they had been subpoenaed). |
| 115.
|
United States v. Richardson, 676 F.3d 491, 502 (5th
Cir. 2012)(internal citations omitted)(The omnibus clause was "drafted
with an eye to the variety of corrupt methods by which the proper
administration of justice may be impeded or thwarted, a variety limited
only by the imagination of the criminally inclined"); see e.g., United States v. Bonds, 730 F.3d 890, 894-95 (9th Cir. 2013)(evasive and misleading testimony before the grand jury); United States v. Sussman, 709 F.3d 155, 168 (3d Cir. 2013)(violation of court order freezing assets); United States v. Macari, 453 F.3d 926, 936 (7th Cir. 2006)(directing a witness to lie before the grand jury); United States v. Quattrone, 441 F.3d 153, 169-73 (2d Cir. 2006)(destruction of documents sought under a grand jury subpoena); United States v. Joiner, 418 F.3d 863, 865-66 (8th
Cir. 2005) (retaliatory economic harassment of federal judge and
prosecutors responsible for the defendant's earlier conviction); United States v. Weber, 320 F.3d 1047, 1051 (9th Cir. 2003) (threatening to kill the judge presiding over the defendant's supervised release revocation hearing); United States v. Novak, 217 F.3d 566, 569-72 (8th Cir. 2000)(submission of false financial reports in violation of court order governing supervised release); United States v. Fleming, 215 F.3d 930, 933-34 (9th
Cir. 2000)(filing false liens against the property of a federal judge
in an effort to influence the judge's handling of a civil action); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999)(attempt to influence the testimony of a criminal trial witness); United States v. Muhammad, 120 F.3d 688 (7th Cir. 1997)(civil trial juror's solicitation of a bribe); United States v. Atkin, 107 F.3d 1213 (6th Cir. 1997) (promising to bribe a trial judge). |
| 116.
|
"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. 1515(c). |
| 117.
|
United States v. Bashaw, 982 F.2d 168 (6th
Cir. 1992)("He contends that the 'omnibus clause' of subsection 1503,
prohibiting attempts corruptly to influence the due administration of
justice, does not apply to conduct directed toward jurors. . .. This
argument is without merit"); see also United States v. Muhammad, 120 F.3d 688, 693-95 (7th Cir. 1997)(juror's solicitation of a bribe comes within the omnibus provision). |
| 118.
|
"Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to influence, intimidate,
or impede any grand or petit juror, or officer in or of any court of
the United States, or officer who may be serving at any examination or
other proceeding before any United States magistrate judge or other
committing magistrate, in the discharge of his duty, or injures any such
grand or petit juror in his person or property on account of any
verdict or indictment assented to by him, or on account of his being or
having been such juror, or injures any such officer, magistrate judge,
or other committing magistrate in his person or property on account of
the performance of his official duties ... shall be punished as provided
in subsection (b). If the offense under this section occurs in
connection with a trial of a criminal case, and the act in violation of
this section involves the threat of physical force or physical force,
the maximum term of imprisonment which may be imposed for the offense
shall be the higher of that otherwise provided by law or the maximum
term that could have been imposed for any offense charged in such case,"
18 U.S.C. 1503(a). |
| 119.
|
United States v. Beale, 620 F.3d 856, 865 (8th
Cir. 2010)(internal quotation marks and citations omitted)("In order to
convict for obstruction of justice, the government must show that each
defendant intended to interfere with the due administration of justice. A
conviction under §1512(a) requires proof of a sufficient nexus between
each defendant's actions and an intent to impede judicial proceedings.
According to the nexus analysis, the act must have a relationship in
time, causation, or logic with the judicial proceedings")(defendants
issued a series of "liens" and "arrest warrants" to intimidate or
disable a federal judge scheduled to preside over the criminal trial of
one of the defendants). |
| 120.
|
United States v. Margoles, 294 F.2d 371, 371 (7th Cir. 1961)(defendant charged with jury tampering under sections 206 and 1503); United States v. Benallo, 216 F.2d 891, 895 (10th Cir. 1954)(upholding convictions for jury tampering in violation of sections 206 and 1503); United States v. Zullo, 151 F.2d 560, 560-62 (3d Cir. 1945)(upholding jury tampering convictions under earlier versions of sections 206 and 1503); Slade v. United States, 85 F.2d 786 (10th Cir. 1936). |
| 121.
|
"[T]he term 'public official' means ... person acting for
or on behalf of the United States, or any department, agency or branch
of Government thereof ... in any official function, under or by
authority of any such department, agency, or branch of Government, or a
juror ... (b) 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 ... (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 personally or for any other person or entity,
in return for: (A) being influenced in the performance of any official
act ... shall be imprisoned for not more than fifteen years ... " 18
U.S.C. 201(a)(1),(b)(1),(2). |
| 122.
|
"Sections 201 through 213 of present title 18 of the
United States Code comprise nine general bribery sections and four
subsections prohibiting bribery in special cases. . .. The bill combines
into a single section (201) and renders uniform the disparate
provisions of the nine general bribery sections (... secs. 206, 207, and
208, judges and judicial officers including jurors ... )," H.Rept.
87-748, at 15 (1961). |
| 123.
|
United States v. DeAlesandro, 361 F.2d 694,
699-700 (2d Cir. 1966)("Defendant contends that she was charged in two
different counts for what amounted to the same crime. One count referred
to 18 U.S.C. 201. . .. The second charged violation of 18 U.S.C. 1503. .
.. It is true that the two counts charged essentially the same acts. .
.. The fatal defect in the argument is that Congress has explicitly made
defendant's conduct criminal in separate statutes, and has indicated
that the two are not to be regarded as defining the same offense. . ..
[Their] history makes clear the congressional intent to create two
separate offenses, separately indictable and separately punishable"); United States v. Henley, 238 F.3d 1111, 1122-123 n.19 (9th
Cir. 2001)("We note that only one court of appeals appears to have
addressed the question of whether a defendant who is involved in jury
tampering may obtain a new trial on that ground. . .. (Under 18 U.S.C.
201, a defendant faces imprisonment of up to 15 years for bribery of a
juror.) Here, there is no allegation that Henley participated in the
tampering incident, only that he was aware of it"). |
| 124.
|
United States v. DeLaRosa, 171 F.3d 215, 217-18 (5th Cir. 1999); United States v. Borders, 693 F.2d 1318, 1319 (11th Cir. 1982); United States v. Neiswender, 590 F.2d 1269, 1270 (4th Cir. 1979); United States v. Quinn, 543 F.2d 640, 642-43 (8th Cir. 1976); United States v. Osborn, 350 F.2d 497, 498 (6th Cir. 1965), aff'd, 385 U.S. 323 (1966); United States v. Hoffa, 349 F.2d 20, 26 (6th Cir. 1965), aff'd, 385 U.S. 293 (1966); but see United States v. Muhammad, 120 F.3d 688, 693-95 (7th Cir. 1997); United States v. DeAlesandro, 361 F.2d 694, 699-700 (2d Cir. 1966). |
| 125.
|
United States v. Beale, 620 F.3d 856, 864 (8th
Cir. 2010)("[I]n order to sustain a conviction, the government must
submit sufficient evidence to prove that (1) a conspiracy existed, (2)
the appellants voluntarily entered into the conspiracy, and (3) the
members of the conspiracy conspired to prevent by force, intimidation or
threat, an officer of the United States from discharging her duties"). |
| 126.
|
The punishment for an offense under this section is (1) in
the case of a killing, the punishment provided in sections 1111 and
1112; (2) in the case of an attempted killing, or a case in which the
offense was committed against a petit juror and in which a class A or B
felony was charged, imprisonment for not more than 20 years, a fine
under this title, or both; and (3) in any other case, imprisonment for
not more than 10 years, a fine under this title, or both," 18 U.S.C.
1503(b). |
| 127.
|
18 U.S.C. 3559. |
| 128.
|
18 U.S.C. 1503(b), 1111, 1112, 3571. |
| 129.
|
18 U.S.C. 372. |
| 130.
|
E.g., United States v. Bruno, 383 F.3d 65, 87-88 (2d Cir. 2004). |
| 131.
|
18 U.S.C. 1961, 1956(c)(7)(A). E.g., United States v. Connolly, 341 F.3d 16, 19 (1st Cir. 2003)(Section 1503 offenses as RICO predicates). |
| 132.
|
18 U.S.C. 2. |
| 133.
|
18 U.S.C. 3. |
| 134.
|
18 U.S.C. 4. |
| 135.
|
Cf., 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 cannot 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 subsection"); 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"). |
| 136.
|
United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991); United States v. Allen, 24 F.3d 1180, 1183 (10th Cir. 1994). |
| 137.
|
United States v. Cabrales, 524 U.S. 1, 7-8 (1998); United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). |
| 138.
|
United States v. Rodriguez-Moreno, 526 U.S. at 279 n.2. |
| 139.
|
United States v. Clenney, 434 F.3d 780, 781-82 (5th
Cir. 2005)("The government argues that venue exists under the terms of
the [parental kidnaping] statute because 'the intent to obstruct the
lawful exercise of parental rights' is an element of the offense, and
Carmichael's parental rights were violated in the Northern District. We
disagree, because this element merely speaks to the offender's mens rea as he commits the conduct essential to the crime; it is plainly not an 'essential conduct element' as required by Rodriguez-Moreno"); United States v. Bowens, 224 F.3d 302, 314 (4th Cir. 2000); United States v. Kim, 246 F.3d 186, 193 (2001); United States v. Bin Laden, 146 F.Supp.2d 373, 379-80 (S.D.N.Y. 2001).
The courts do not agree on whether the materiality element
in §1001 constitutes a conduct element sufficient to make venue proper
in the place where the false statement has an impact, United States v. Oceanpro Industries, Ltd., 674 F.3d 323, 329-30 (4th Cir. 2012)("Congress ... defined the effects in §1001 to include the element of materiality ... United States v. Ringer, 300 F.3d 788, 792 (7th
Cir. 2002)('Since the halting of the investigation against Ringers'
friends in the Southern District of Indiana was evidence of the
materiality of Ringer's statements, venue was proper in the Southern
District of Indiana'); United States v. Salinas, 373 F.3d 161, 167 (1st Cir. 2004)"); but see United States v. Smith, 641 F.3d 1200, 1208 (10th
Cir. 2011)("Mr. Smith made his allegedly false statement in
Minnesota.... [T]he only connection between Oklahoma [where the
government sought venue] and Mr. Smith's statements is that the
subject-matter of the allegedly false statements relayed events that
occurred in Oklahoma, and at the time there was an investigation in
Oklahoma"). |
| 140.
|
"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. |
| 141.
|
18 U.S.C. 1505. Under 18 U.S.C. 3571, felonies are
punishable by a fine of not more than $250,000 (not more than $500,000
if the offender is an organization). |
| 142.
|
E.g., United States v. Safavian, 528 F.3d 957, 967-68 (D.C. Cir. 2008); United States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007); 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). |
| 143.
|
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. Warshak, 631, F.3d 266, 325 (6th Cir. 2010); 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); United States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007). |
| 144.
|
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. |
| 145.
|
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"). |
| 146.
|
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 cannot 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"). |
| 147.
|
United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991); United States v. Mitchell, 877 F.2d at 299; United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988). |
| 148.
|
United States v. Poindexter, 951 F.2d 369
(D.C.Cir. 1991)(holding that ambiguity of the term "corruptly" in the
context of 1505 rendered it unconstitutionally vague at least when
applied to false statements made directly to Congress). |
| 149.
|
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). |
| 150.
|
18 U.S.C. 1961(1), 1956(c)(7). |
| 151.
|
E.g., United States v. Warshak, 631 F.3d 266, 325 (6th Cir. 2010); United States v. Blackwell, 459 F.3d 739, 748 (6th Cir. 2006). |
| 152.
|
Cf., United States v. Bowman, 260 U.S.
94, 98 (1922)("We cannot 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"). |
| 153.
|
18 U.S.C. 2, 3, 4. E.g., United States v. Leo, 941 F.2d 181, 184 (3d Cir. 1991). |
| 154.
|
P.L. 97-291, 96 Stat. 1249, 1250 (1982). |
| 155.
|
18 U.S.C. 1515(a). |
| 156.
|
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"). |
| 157.
|
18 U.S.C. 1512(h), 1513(d). |
| 158.
|
"(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 30 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). |
| 159.
|
"(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 20 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). |
| 160.
|
"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(f). Conspiracy to violate §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). In either case, a conspirator is liable for a violation of
§1513 committed by a co-conspirator in foreseeable furtherance of their
common scheme, United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009). |
| 161.
|
United States v. Henderson, 626 F.3d 326, 342 (6th Cir. 2010), quoting, United States v. Cofield, 11 F.3d 413, 419 (4th Cir. 1993); see also United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009). |
| 162.
|
"(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(f). 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." |
| 163.
|
United States v. Draper, 553 F.3d 174,
180 (2d Cir. 2009)("[T]o sustain a witness retaliation charge, the
government must establish three elements: One, the defendant engaged in
conduct that caused or threatened a witness with bodily injury; two, the
defendant acted knowingly, with the specific intent to retaliate
against the witness for information the witness divulged to law
enforcement authorities about a federal offense; and three, the
officials to which the witness divulged information were federal
agents"); 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. Beliveau, 802 F.2d 553, 562 (1st Cir. 1986). |
| 164.
|
United States v. Cunningham, 54 F.3d 295, 299 (7th Cir. 1995). |
| 165.
|
United States v. Maggitt, 794 F.2d 590, 593-94 (5th Cir. 1986). |
| 166.
|
United States v. Stoker, 706 F.3d 643, 646-49 (5th Cir. 2013). |
| 167.
|
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"). |
| 168.
|
18 U.S.C. 1961(1), 1956(c)(7)(A). |
| 169.
|
E.g., United States 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), and 1114 (attempted murder
of an individual assisting federal officers or employees). |
| 170.
|
18 U.S.C. 2. E.g., United States v. Wardell, 591 F.3d 1279, 1292 (10th Cir. 2009). |
| 171.
|
18 U.S.C. 3. |
| 172.
|
18 U.S.C. 4. |
| 173.
|
18 U.S.C. 371. For addition discussion see Twenty-Eighth Survey of White Collar Crime: Federal Criminal Conspiracy, 50 American Criminal Law Review 989 (2013); CRS Report R41223, Federal Conspiracy Law: A Brief Overview. |
| 174.
|
United States v. Mubayyid, 658 F.3d 35, 52 (1st
Cir. 2011)(internal citations omitted)("Pursuant to [the defraud]
provision, the government was required to prove three elements: an
agreement, the unlawful objective of the agreement, and an overt act in
furtherance of the agreement. The objective of the agreement is unlawful
if it is for the purpose of impairing, obstructing or defeating the
lawful function of any department of the government ... through deceit,
craft, trickery, and dishonest means"); 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). Although it seems at odds with the
text of the statute and the Supreme Court's construction of the
conspiracy to defraud prong of the statute, some appellate courts have
suggested that conviction requires an underlying substantive offense,
see e.g., United States v. Durham, 645 F.3d 883, 893 (7th
Cir. 2011)("One element of a charge of conspiracy to defraud the United
States, in violation of §371, is intent to commit the substantive
offense"). |
| 175.
|
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). |
| 176.
|
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 means 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 ... '"); United States v. Coplan,
703 F.3d 46, 61 (2d Cir. 2013)(To prove conspiracy to defraud, "the
Government must show (1) that the defendant entered into an agreement
(2) to obstruct a lawful function of the Government (3) by deceitful or
dishonest means and (4) at least one overt act in furtherance of the
conspiracy"); United States v. Meredith, 685 F.3d 814, 822 (9th Cir. 2012). |
| 177.
|
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. Whiteford, 676 F.3d 348, 356 (3d Cir. 2012); 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'"). |
| 178.
|
United States v. Grasso, 724 F.3d 1077, 1086 (9th Cir. 2013); see also United States v. Mathis, 738 F.3d 719, 735 (6th Cir. 2013); United States v. McDonough, 727 F.3d 143, 156 (1st Cir. 2013); United States v. Read, 710 F.3d 219, 226 (5th Cir. 2012); United States v. McNair, 605 F.3d 1152, 1195 (11th Cir. 2010); United States v. Mohamed, 600 F.3d 1000, 1007 (8th Cir. 2010); United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009). |
| 179.
|
United States v. Feola, 420 U.S. 671, 686 (1975); United States v. Caira, 737 F.3d 455, 463-64 (7th Cir. 2013); United States v. Njoku, 737, F.3d 55, 68 (5th Cir. 2013); United States v. Deffenbaugh, 709 F.3d 266, 272 (4th Cir. 2013); United States v. Rodriguez-Adorno, 695 F.3d 32, 41-2 (1st Cir. 2012); United States v. Weeks, 653 F.3d 1188, 1202 (10th Cir. 2011). |
| 180.
|
United States v. Read, 710 F.3d 219, 226 (5th Cir. 2012); 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). |
| 181.
|
Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Alaniz, 726 F.3d 586, 614 (5th Cir. 2013); United States v. Grosso, 724 F.3d 1077, 1089 (9th Cir. 2013); United States v. Ali, 718 F.3d 929, 941 (D.C.Cir. 2013). |
| 182.
|
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. |
| 183.
|
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). |
| 184.
|
IV Blackstone, Commentaries of the Laws of England 124 (1769). |
| 185.
|
Id. at 122 ("Contempts against the prerogative
may also be ... by disobeying the king's lawful commands; whether by
writs issuing out of his courts of justice, or by a summons to attend
his privy council, or by letters from the king to a subject commanding
him to return from beyond the seas. . .. Disobedience of any of these
commands is a high misprision and contempt"). |
| 186.
|
1 Stat. 83 (1789). |
| 187.
|
"A court of the United States shall have power to punish
by fine or imprisonment, at its discretion, such contempt of its
authority, and none other, as—(1) Misbehavior of any person in its
presence or so near thereto as to obstruct the administration of
justice; (2) Misbehavior of any of its officers in their official
transactions; (3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command," 18 U.S.C. 401. |
| 188.
|
"Any person, corporation or association willfully
disobeying any lawful writ, process, order, rule, decree, or command of
any district court of the United States or any court of the District of
Columbia, by doing any act or thing therein, or thereby forbidden, if
the act or thing so done be of such character as to constitute also a
criminal offense under any statute of the United States or under the
laws of any State in which the act was committed, shall be prosecuted
for such contempt as provided in section 3691 of this title [relating to
jury trials in criminal contempt cases] and shall be punished by a fine
under this title or imprisonment, or both. Such fine shall be paid to
the United States or to the complainant or other party injured by the
act constituting the contempt, or may, where more than one is so
damaged, be divided or apportioned among them as the court may direct,
but in no case shall the fine to be paid to the United States exceed, in
case the accused is a natural person, the sum of $1,000, nor shall such
imprisonment exceed the term of six months. This section shall not be
construed to relate to contempts committed in the presence of the court,
or so near thereto as to obstruct the administration of justice, nor to
contempts committed in disobedience of any lawful writ, process, order,
rule, decree, or command entered in any suit or action brought or
prosecuted in the name of, or on behalf of, the United States, but the
same, and all other cases of contempt not specifically embraced in this
section may be punished in conformity to the prevailing usages at law.
For purposes of this section, the term "State" includes a State of the
United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States," 18 U.S.C. 402. |
| 189.
|
International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827-28 (1994); F.T.C. v. Trudeau, 579 F.3d 754, 769 (7th
Cir. 2009)(internal citations omitted)("Generally, civil contempt is
remedial and for the benefit of the complainant, while criminal contempt
is punitive, to vindicate the authority of the court. In terms of
monetary sanctions, civil sanctions fall in two categories. They can
compensate the complainant for his losses caused by the contemptuous
conduct. Or they can coerce the contemnor's compliance with a court
order. A coercive sanction must afford the contemnor the opportunity to
purge, meaning the contemnor can avoid punishment by complying with the
court order"); see also Ahearn v. International Longshore and Warehouse Union, Locals 21 and 4, 721 F.3d 1122, 1128-129 (9th Cir. 2013).
Civil contempt and other noncriminal judicial sanctions
are beyond the scope of this report. A partial list of such sanctions
would include 28 U.S.C. 1927 (award cost expenses, attorney's fees
against attorneys who multiply proceedings); 28 U.S.C. 1826
(recalcitrant witnesses); F.R.Civ.P. 11 (sanction a party or the party's
attorney for filing groundless pleadings, motions or other papers);
F.R.Civ.P. 16(f) (sanction a party or party's attorney for failure to
abide by a pretrial order); F.R.Civ.P. 26(g) (sanction a party or
party's attorney for baseless discovery requests or objections);
F.R.Civ.P. 30(g) (award expenses caused by failure to attend a
deposition or to serve a subpoena on a party to be deposed); F.R.Civ.P.
37(d), (g) (award expenses when a party fails to respond to discovery
requests or fails to participate in the framing of a discovery plan);
F.R.Civ.P. 41(b) (dismiss an action or claim of a party that fails to
prosecute, to comply with the Federal Rules or to obey an order of the
court); F.R.Civ.P. 56(g) (award expenses or contempt damages when a
party presents an affidavit in a summary judgment motion in bad faith or
for the purpose of delay); F.R.App. P. 38 (power to award damages and
costs for frivolous appeal). |
| 190.
|
In re Bradley, 588 F.3d 254, 263 (5th
Cir. 2009)("Imprisonment is an appropriate remedy for either civil or
criminal contempt, depending on how it is assessed, if the prison term
is conditional and coercive, the character of the contempt is civil; if
it is backward-looking and unconditional it is criminal.... Similarly, a
fine that punishes past conduct is criminal, while a fine that accrues
on an ongoing basis in response to noncompliance is civil"); see also Ahearn v. International Longshore and Warehouse Union, Locals 21 and 4, 721 F.3d 1122, 1128-129 (9th Cir. 2013). |
| 191.
|
In re Solomon, 465 F.3d 114 (3d Cir. 2006). |
| 192.
|
United States v. Love, 449 F.3d 1154 (11th Cir. 2006). |
| 193.
|
United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005). |
| 194.
|
United States v. Brennan, 395 F.3d 59 (2d Cir. 2005). |
| 195.
|
Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004). |
| 196.
|
United States v. Loudon, 385 F.3d 795 (2d Cir. 2004). |
| 197.
|
United States v. Marshall, 371 F.3d 42 (2d Cir. 2004). |
| 198.
|
United States v. Smith, 344 F.3d 479 (6th Cir. 2003). |
| 199.
|
United States v. Ferrara, 334 F.3d 774 (2003). |
| 200.
|
United States v. Kimble, 305 F.3d 480 (6th Cir. 2002). |
| 201.
|
United States v. Mourad, 289 F.3d 174 (1st Cir. 2002). |
| 202.
|
F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128 (9th Cir. 2001). |
| 203.
|
United States v. Bernardine, 237 F.3d 1279 (11th Cir. 2001). |
| 204.
|
United States v. Galin, 222 F.3d 1123 (9th Cir. 2000). |
| 205.
|
United States v. Rrapi, 175 F.3d 742 (9th Cir. 1999). |
| 206.
|
United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997). |
| 207.
|
United States v. Grisanti, 116 F.3d 984 (2d Cir. 1997). |
| 208.
|
United States v. Rangolan, 464 F.3d 321, 324 (2d Cir. 2006), citing International Union, United Mineworkers v. Bagwell, 512 U.S. 821, 832 (1994); In re Troutt, 460 F.3d 887, 893 (7th Cir. 2006). |
| 209.
|
United States v. Rangolan, 464 F.3d 321, 325 (2d Cir. 2006). |
| 210.
|
International Union, United Mineworkers v. Bagwell, 512 U.S. 821, 832, 827 n.2 (1994); United States v. Britton, 731 F.3d 745, 749 (7th Cir. 2013). |
| 211.
|
18 U.S.C. 401(1). Rule 42(b) supplies the minimal procedural requirements, i.e.,
"Notwithstanding any other provision of these rules, the court (other
than a magistrate judge) may summarily punish a person who commits
criminal contempt in its presence if the judge saw or heard the
contemptuous conduct and so certifies; a magistrate judge may summarily
punish a person as provided in 28 U.S.C. § 636(e). The contempt order
must recite the facts, be signed by the judge, and be filed with the
clerk." United States v. Moncier, 571 F.3d 593, 598 (6th
Cir. 2009)("The elements of criminal contempt are (1) the defendant
engaged in misbehavior, (2) that the misbehavior obstructed the
administration of justice, (3) that the misbehavior occurred in the
presence of the court, and (4) that defendant acted with intent to
obstruct"). |
| 212.
|
United States v. Wilson, 421 U.S. 309, 314-15 (1975); Brown v. United States,
356 U.S. 148, 154-55 (1958). By the same token, false statements cannot
be punished as contempt unless they are so patently false that without
reference to any other evidence they constitute a clear refusal to
testify rather than to deceive, United States v. Arredondo, 349 F.3d 310, 318 (6th Cir. 2003). |
| 213.
|
United States v. Perry, 116 F.3d 952, 956 (1st Cir. 1997). |
| 214.
|
In re Sealed Case, 627 F.3d 1235, 1237-238 (D.C.Cir. 2010); United States v. Marshall, 371 F.3d 42, 46 (2d Cir. 2004); United States v. Seale, 461 F.2d 345, 370 (7th Cir. 1972); United States v. Murphy, 326 F.3d 501, 504 (4th Cir. 2003); United States v. Browne, 318 F.3d 261, 266 (1st Cir. 2003); United States v. Rrapi, 175 F.3d 742,753-54 (9th
Cir. 1999)(obscene outburst directed at jurors before they were
polled). The court in each of these cases felt obliged to explain how
the misconduct at issue constituted an obstruction in the administration
of justice. |
| 215.
|
United States v. Rangolan, 464 F.3d 321, 324 (2d
Cir. 2006)("Because the summary contempt sanction is not subject to the
usual requirements of a jury trial or notice and opportunity to be
heard, summary contempt is a rule of necessity, reserved for exception
circumstances and a narrow category of contempt"), citing Harris v. United States, 382 U.S. 162, 164-65 (1965), and United States v. Marshall, 371 F.3d 42, 45 (2d Cir. 2004); see also United States v. Arredondo, 349 F.3d 310, 317 (6th Cir. 2003); United States v. Oberhellmann, 946 F.2d 50, 53 (7th
Cir.1991). The Sixth Amendment right to a jury trial limits the term of
imprisonment which a court may summarily impose to a maximum of six
months, United States v. Browne, 318 F.3d 261, 265 (1st Cir. 2003), citing Codispoti v. Pennsylvania, 318 F.3d 506, 511-12 (1974); United States v. Marshall, 371 F.3d 42, 48-9 (2d Cir. 2004); United States v. Linney, 134 F.3d 274, 280 (4th Cir. 1998). |
| 216.
|
In re Smothers, 322 F.3d 438, 440 (6th Cir. 2003); In re Gates, 600 F.3d 333, 339 (4th Cir. 2010); United States v. Peoples, 698 F.3d 185, 192 (4th Cir. 2012). |
| 217.
|
United States v. Cooper, 353 F.3d 161, 163-64 (2d Cir. 2003). |
| 218.
|
United States v. Rangolan, 464 F.3d 321, 327-28 (2d Cir. 2006) . |
| 219.
|
Smith v. Smith, 145 F.3d 335, 342 (5th Cir. 1998). |
| 220.
|
F.T.C. v. Trudeau, 606 F.3d 382, 390 (7th Cir. 2010). |
| 221.
|
F.R.Crim.P. 42(a)(1). |
| 222.
|
International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 826-27 (1994); United States v. Dixon, 509 U.S. 688, 696 (1993); United States v. Glass, 361 F.3d 580, 590 n.13 (9th Cir. 2004); S.E.C. v. First Choice Management Services, Inc., 678 F.3d 538, 544 (2012). |
| 223.
|
F.R.Crim.P. 42(a)(2)("The court must request that the
contempt be prosecuted by an attorney for the government, unless the
interest of justice requires the appointment of another attorney. If the
government declines the request, the court must appoint another
attorney to prosecute the contempt"). |
| 224.
|
In re Reed, 161 F.3d 1311, 1317 (11th Cir. 1998). |
| 225.
|
United States v. Peoples, 698 F.3d 185, 189 (4th Cir. 2012). |
| 226.
|
E.g., Cammer v. United States, 350 U.S. 399, 407-8 (1956); F.J. Hanshaw Enterprises, Inc. v. Emerald River Development Inc., 244 F.3d 1128, 1136 n.5 (9th Cir. 2001); United States v. Griffin, 84 F.3d 820, 832 n.8 (7th Cir. 1996). |
| 227.
|
But see United States v. Arredondo, 349 F.3d 310, 318-19 (6th Cir. 2003)(noting in passing that jurors and veniremen are officers of the court for purposes of subsection 401(2)). |
| 228.
|
18 U.S.C. 401(3). United States v. Allen, 587 F.3d 246, 255 (5th
Cir. 2009)("[T]he elements of criminal contempt under 18 U.S.C. §401(3)
are (1) a reasonably specific order; (2) violation of the order; and
(3) the willful intent to violate the order"); see also United States v. Hernandez, 600 F.3d 333, 338-39 (4th Cir. 2010). |
| 229.
|
Romero v. Drummond Co., Inc., 480 F.3d 1234, 1242 (11th Cir. 2007); United States v. Mourad, 289 F.3d 174, 180 (1st Cir. 2002); United States v. Ortlieb, 274 F.3d 871, 874 (5th Cir. 2001); Ashcraft v. Conoco, Inc., 218 F.3d 288, 295 (4th Cir. 2000); United States v. Vezina, 165 F.3d 176, 178 (2d Cir. 1999); United States v. Rapone, 131 F.3d 188, 192 (D.C. Cir. 1997); United States v. Doe, 125 F.3d 1249, 1254 (9th Cir. 1997). |
| 230.
|
United States v. Britton, 731 F.3d 745, 749 (7th Cir. 2013); United States v. Galin, 222 F.3d 1123, 1127 (9th Cir. 2000). |
| 231.
|
United States v. Allen, 587 F.3d 246, 255 (5th
Cir. 2009)("For a criminal contempt conviction to stand, the evidence
... must show both a contemptuous act and a willful, contumacious, or
reckless state of mind.... '[W]illfulness' in the context of the
criminal contempt statute at a minimum requires a finding of
recklessness, which requires more than a finding that an individual
'reasonably should have known' that the relevant conduct was
prohibited"); see also In re Kendall, 712 F.3d 814, 830-31(3d Cir. 2013); United States v. Ortlieb, 274 F.3d 871, 875 (5th Cir. 2001); United States v. Marquardo, 149 F.3d 36, 43 n.4 (1st Cir. 1998); United States v. Themy-Kotronakis, 140 F.3d 858, 864 (10th Cir. 1998); United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997). |
| 232.
|
United States v. Mottweiler, 82 F.3d 769, 772 (7th Cir. 1996). |
| 233.
|
Ashcroft v. Conoco, Inc., 218 F.3d 288, 299 (4th Cir. 2000). |
| 234.
|
Maness v. Meyers, 419 U.S. 449, 458 (1975); In re Criminal Contempt Proceedings Against Crawford, 329 F.3d 131, 138 (2d Cir. 2003); United States v. Mourad, 289 F.3d 174, 177-78 (1st Cir. 2002). |
| 235.
|
United States v. Dixon, 509 U.S. 688, 696 (1993).
As a general matter the Constitution directs that no person shall "be
subject for the same offense to be twice put in jeopardy of the life or
limb," U.S. Const. Amend. V. |
| 236.
|
United States v. Lippitt, 180 F.3d 873, 879 (7th Cir. 1999); United States v. Marquardo, 149 F.3d 36, 41 (1st Cir. 1998). |
| 237.
|
United States v. Forman, 180 F.3d 766, 768-69 (6th Cir. 1999); United States v. Landerman, 109 F.3d 1053, 1068 (5th Cir. 1997). Of course, the same events may lead to prosecution under both section 401 and other obstruction offenses, e.g., United States v. Henry, 519 F.3d 68, 71-74 (1st Cir. 2008); United States v. Senffner, 280 F.3d 755, 758 (7th
Cir. 2002)(upholding convictions under 18 U.S.C. 401 and 1503 for
transferring assets in violation of a court-ordered asset freeze); United States v. Novak, 217 F.3d 566 (8th Cir. 2000)(upholding convictions under 18 U.S.C. 401 and 1503 for submitted false statements to the probation service). |
| 238.
|
In United States v. Booker, 543 U.S. 220, 245
(2005), the Supreme Court held unconstitutional but severable the
statutory provision that made the Sentencing Guidelines binding on
federal courts. The results recommended by application of the Guidelines
remain one of several statutory factors which federal sentencing courts
must consider, 18 U.S.C. 3553. In part because the other factors are
very general while the Guidelines are very fact-specific, the Guidelines
continue to carry great weight, cf., Gall v. United States,
552 U.S. 38, 49-50 (2007)("[A] district court should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range. As a matter of administration and to secure nationwide
consistency, the Guidelines should be the starting point and the
initial benchmark. The Guidelines are not the only consideration,
however. Accordingly, after giving both parties an opportunity to argue
for whatever sentence they deem appropriate, the district judge should
then consider all of the §3553(a) factors to determine whether they
support the sentence requested by a party. In so doing, he may not
presume that
the Guidelines range is reasonable. He must make an individualized
assessment based on the facts presented. If he decides that an
outside-Guidelines sentence is warranted, he must consider the extent of
the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance. We find it
uncontroversial that a major departure should be supported by a more
significant justification than a minor one. After settling on the
appropriate sentence, he must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the perception of
fair sentencing"); United States v. Miner, 544 F.3d 930, 932-33 (8th
Cir. 2008)(affirming a sentence for contempt which calculated the
sentencing range under the Guidelines and then considered the other
factors listed in §3553(a)). |
| 239.
|
U.S.S.G §2J1.1, Commentary: Application Note 1. |
| 240.
|
Id. |
| 241.
|
E.g., United States v. Brennan, 395 F.3d
59, 72-4 (2d Cir. 2005)(application of the larceny guideline for
violation of a bankruptcy court's asset freeze order "amounted to
stealing money ... that should have gone to his victims or creditors"); United States v. Ferrara, 334 F.3d 774, 777-78 (8th
Cir. 2003)(application of the fraud guideline for violation of
court-ordered consent decree prohibiting activities relating to Federal
Trade Commission Act offenses); United States v. Kimble, 305 F.3d 480, 485-86 (6th Cir. 2002)(application of the accessory after the fact guideline for a witness's refusal to testify at a homicide trial); United States v. Jones, 278 F.3d 711, 716 (7th
Cir. 2002)(application of the failure of a material witness to appear
for a witness's refusal to testify before the grand jury and at trial); United States v. Brady, 168 F.3d 574, 577-79 (1st Cir. 1999)(application of the obstruction of justice guideline for a witness's refusal to testify before the grand jury); United States v. Fisher, 137 F.3d 1158, 1167 (9th
Cir. 1998)(application of the failure to appear for judicial
proceedings guideline to a violation of bail condition requiring
attendance at judicial proceedings); United States v. Versaglio,
85 F.3d 943, 949 (2d Cir. 1996)(application of the obstruction of
justice guideline to a witness's refusal to testify at trial). |
| 242.
|
18 U.S.C. 3561(a)(1). A class A felony is an offense for
which the maximum penalty is death or the maximum term of imprisonment
is life; a class B felony is an offense for which the maximum term of
imprisonment is 25 years or more, 18 U.S.C. 3559(a)(1), (2). |
| 243.
|
18 U.S.C. 3013. |
| 244.
|
18 U.S.C. 3583(b). Petty offenses are those misdemeanors
and infractions other than class A misdemeanors, 18 U.S.C. 19; class A
misdemeanors are those offenses for the maximum term of imprisonment is
one year or less but more than 6 months, 18 U.S.C. 3559(a)(6). |
| 245.
|
United States v. Love, 449 F.3d 1154, 1158 (11th Cir. 2006); United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir. 1996); see also United States v. Broussard, 611 F.3d 1069, 1071 (9th Cir. 2010) and United States v. Cohn, 586 F.3d 844, 846 (11th
Cir. 2009)(each noting that the lower court had classed a contempt
conviction as a Class A felony because it had no statutory maximum
penalty). |
| 246.
|
Id. |
| 247.
|
United States v. Broussard, 611 F.3d 1069, 1072 (9th Cir. 2010). |
| 248.
|
United States v. Cohn, 586 F.3d 844, 848 (11th
Cir. 2009). The Eleventh Circuit found it unnecessary to decide the
question since any error committed when the lower court sentenced the
defendant to incarceration for 45 days and a five-year term of
supervised release had been induced by the defendant, United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). |
| 249.
|
Ahearn v. International Longshore and Warehouse Union,721 F.3d 1122, 1128 (9th Cir. 2013); F.T.C. v. Leshin, 719 F.3d 1227, 1231 (11th Cir. 2013); Hawkins v. Dept. of Health and Human Services for the State of New Hampshire, 665 F.3d 25, 32 (1st Cir. 2012); Southern New England Tele. Co. v. Global NAPs Inc., 624 F.3d 123, 146 (2d Cir. 2010). |
| 250.
|
Hawkins v. Dept. of Health and Human Services for the State of New Hampshire, 665 F.3d 25, 31 (1st Cir. 2012); F.T.C. v. Leshin, 618 F.3d 1221, 1232 (11th
Cir. 2010)("A finding of civil contempt must be supported by clear and
convincing evidence that the allegedly violated order was valid and
lawful; the order was clear and unambiguous; and the alleged violator
had the ability to comply with the order. Once this prima facie showing
of a violation is made, the burden then shifts to the alleged contemnor
to produce evidence explaining his noncompliance at a show cause
hearing"). |
| 251.
|
Turner v. Rogers, 131 S.Ct. 2507, 2516
(2011)(internal citations omitted)("Civil contempt differs from criminal
contempt in that it seeks only to coerce the defendant to do what a
court had previously ordered him to do. A court may not impose
punishment in a civil contempt proceeding when it is clearly established
that the alleged contemnor is unable to comply with the terms of the
order. And once a civil contemnor complies with the underlying order, he
is purged of the contempt and is free (he carries the keys of his
prison in his own pockets"); F.T.C. v. Leshin, 719 F.3d 1227, 1231 (11th Cir. 2013). |
| 252.
|
S.E.C. v. First Choice Management Services, Inc., 709 F.3d 685, 688 (7th Cir. 2013); Hawkins v. Dept. of Health and Human Services for the State of New Hampshire, 665 F.3d 25, 32 n.10 (1st Cir. 2012); cf., F.T.C. v. Leshin, 719 F.3d 1227, 1234 (11th Cir. 2013). |
| 253.
|
2 U.S.C. 192-196; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); McGrain v. Daugherty, 273 U.S. 135 (1927). |
| 254.
|
For a more extensive discussion of contempt of Congress see CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure. |
| 255.
|
2 U.S.C. 192. By operation of 18 U.S.C. 3571 the maximum fine is $100,000 ($200,000 for organizations). |
| 256.
|
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 ... "). |
| 257.
|
Sinclair v. United States, 279 U.S. 263, 296 (1929). |
| 258.
|
Gojack v. United States, 384 U.S. 702, 713 (1966); Sinclair v. United States, 279 U.S. 263, 296 (1929). |
| 259.
|
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"). |
| 260.
|
Russell v. United States, 369 U.S. 749, 755-56 (1962), citing Sinclair v. United States, 279 U.S. 263, 273 (1929); United States v. Resendiz-Ponce,
549 U.S. 102, 109 (2007)("[A] valid indictment for such refusal to
testify must go beyond the words of §192 and allege the subject of the
congressional hearing in order to determine whether the defendant's
refusal was 'pertinent.'''). |
| 261.
|
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). |
| 262.
|
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 appraisal 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). |
| 263.
|
McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Bryan, 339 U.S. 323, 332-33 (1950). |
| 264.
|
U.S. Const. Amend. V ("No person ... shall be compelled in any criminal case to be a witness against himself ... "). |
| 265.
|
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"). |
| 266.
|
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). |
| 267.
|
Braswell v. United States, 487 U.S. 99, 107-108 (1988). |
| 268.
|
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, 36-38 (2000). |
| 269.
|
Fisher v. United States, 425 U.S. 391, 409-10 (1976); United States v. Doe, 465 U.S. 605, 611-12 (1984). |
| 270.
|
Hutcheson v. United States, 369 U.S. 599, 608-609 (1962); Emspak v. United States, 349 U.S. 190, 195-96 (1955). |
| 271.
|
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). |
| 272.
|
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 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");. |
| 273.
|
Watkins v. United States, 354 U.S. 178, 196-206 (1957). |
| 274.
|
United States v. Rumely, 345 U.S. 41, 46-8 (1953); Watkins v. United States, 354 U.S. 178, 207-16 (1957). |
| 275.
|
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 ... "). |
| 276.
|
Watkins v. United States, 354 U.S. 178, 188 (1957)(Witnesses "cannot be subjected to unreasonable searches and seizures"). |
| 277.
|
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946). |
| 278.
|
"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). |
| 279.
|
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. |
| 280.
|
McPhaul v. United States, 364 U.S. 372, 381-82
(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). |
| 281.
|
United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972). |
| 282.
|
"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 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. |
| 283.
|
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 Wayte 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"). |
| 284.
|
Yellin v. United States, 374 U.S. 109, 123-24 (1963). |
| 285.
|
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. |
| 286.
|
"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. |
| 287.
|
In 1984, Congress established a uniform fine schedule
which amends individual statutory maximum fine provisions like those of
§192 sub silentio, 18 U.S.C. 3571. Under the schedule, class A
misdemeanors (crimes punishable by imprisonment for not more than one
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). |
| 288.
|
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). |
| 289.
|
Jurney v. MacCracken, 294 U.S. 125, 151 (1935); In re Chapman, 166 U.S. 661, 671-72 (1897). |
| 290.
|
In addition to §192, some of the misconduct that might
have been punished under Congress's 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). |
| 291.
|
Congress does not appear to have called upon its inherent
power of contempt since the mid-1930s, 4 Deschler's Precedents of the
House of Representatives, ch. 15, §17 n.7 (1974); Beck, Contempt of
Congress, App.A, at 213 (1959). |
| 292.
|
18 U.S.C. 6001-6005. |
| 293.
|
18 U.S.C. 401, 402; United States v. Quinn, 728 F.3d 243, 253 (3d Cir. 2013), citing Kastigar v. United States, 406 U.S. 441, 453 (1972); United States v. North, 920 F.2d 940, 943 (D.C.Cir. 1990). |
| 294.
|
28 U.S.C. 1365. |
| 295.
|
18 U.S.C. 115(a)(1)(A). |
| 296.
|
18 U.S.C. 115(a)(1)(B). |
| 297.
|
18 U.S.C. 115(a)(2). |
| 298.
|
18 U.S.C. 115(a)(1)(A). |
| 299.
|
United States v. Bennett, 368 F.3d 1343, 1352-354 (11th Cir. 2004), vac'd on other grounds, 543 U.S. 1110 (2005). |
| 300.
|
18 U.S.C. 115(b)(2), (3). |
| 301.
|
18 U.S.C. 115(b)(1). |
| 302.
|
18 U.S.C. 115(b)(1), (2), (3), 1201, 1111, 1113, 1117, 3571. |
| 303.
|
18 U.S.C. 115(a)(1)(B), (b)(4). |
| 304.
|
United States v. Bankoff, 613 F.3d 358, 372 (3d Cir. 2010). |
| 305.
|
United States v. Berki, 936 F.2d 529, 532-34 (11th Cir. 1991). |
| 306.
|
United States v. Veach, 455 F.3d 628, 632-34 (6th Cir. 2006). |
| 307.
|
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, 348 (2d Cir. 1994); and United States v. Maisoner, 484 F.2d 1356, 1358 (4th Cir. 1973)"). |
| 308.
|
United States v. Stewart, 403 F.3d 1007, 1016-19 (9th Cir. 2005), quoting, Virginia v. Black, 538 U.S. 343, 349-50 (2003). |
| 309.
|
United States v. Turner, 720 F.3d 411, 420 (2d
Cir. 2013)("This Circuit's test for whether conduct amounts to a true
threat is an objective one—namely, whether an ordinary, reasonable
recipient who is familiar with the context of the communication would
interpret it as a threat of injury"); United States v. Armel, 585 F.3d 182, 185 (4th
Cir. 2009)("Statements constitute a 'true threat' if an ordinary
reasonable recipient who is familiar with their context would interpret
those statements as a threat to injury"); but see United States v. Stefanik, 674 F.3d 71, 75 (1st
Cir. 2012)("A person may be convicted for making a threat if he should
have reasonably foreseen that the statement he uttered would be taken as
a threat by those to whom it is made"). |
| 310.
|
18 U.S.C. 115(a)(2). |
| 311.
|
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"). |
| 312.
|
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), 1513
(witness retaliation), 371 (conspiracy to murder a government witness)). |
| 313.
|
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 [not more than 20 years if bodily
injury is inflicted or dangerous weapons used], or both"). |
| 314.
|
18 U.S.C. 351. |
| 315.
|
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 officials 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
to 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 to Pacific salmon
conservation), 5009 (assaults on federal officials conducting searches
or inspections on vessels subject to the jurisdiction of the United
States with respect to 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
to 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 to 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), 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). |
| 316.
|
E.g., 18 U.S.C. 152 (bribery in bankruptcy), 224 (bribery
in sporting contests), 226 (bribery affecting port security); 16 U.S.C.
6906 (bribery relating to the Western and Central Pacific Fisheries
Convention); 21 U.S.C. 331(y)(3), 333 (Federal Food, Drug & Cosmetic
Act bribery); 42 U.S.C. 1320a-7b(b)(1)(bribery relating to social
security health care). |
| 317.
|
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); United States v. Heard, 709 F.3d 413, 419-20 (5th Cir. 2013). Section 201 outlaws both but punishes bribery more severely. For additional discussion of Section 1512 see Twenty-Eighth Survey of White Collar Crime: Public Corruption, 50 American Criminal Law Review 1371 (2013). |
| 318.
|
United States v. Sun-Diamond Growers, 526 U.S. at 404. See also United States v. White Eagle, 721 F.3d 1108, 1115(9th
Cir. 2013)("The government was required to prove that: (1) White Eagle
was a public official; (2) she received something of value in return for
being induced to do or omit to do an act in violation of her official
duty; and (3) she acted corruptly—that is, with the intent to be
influenced to perform an act that violated her official duty"); United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009); United States v. Valle, 538 F.3d 341, 345-47 (5th Cir. 2008).
The Court's opinion in Sun-Diamond 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 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 violation of the official duty of such
official or person ... shall be fined under this title or not more than
three times the monetary equivalent of the thing of value, whichever is
greater, or imprisoned for not more than fifteen years, or both, and may
be disqualified from holding any office of honor, trust, or profit
under the United States." |
| 319.
|
That is, "Whoever ... (3) directly or indirectly,
corruptly gives, offers, or promises anything of value to any person, or
offers or promises such person to give anything of value to any other
person or entity, with intent to influence the testimony under oath or
affirmation of such first-mentioned person as a witness upon a trial,
hearing, or other proceeding, before any court, any committee of either
House or both Houses of Congress, or any agency, commission, or officer
authorized by the laws of the United States to hear evidence or take
testimony, or with intent to influence such person to absent himself
therefrom; [or] (4) directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept anything of value
personally or for any other person or entity in return for being
influenced in testimony under oath or affirmation as a witness upon any
such trial, hearing, or other proceeding, or in return for absenting
himself therefrom; shall be fined under this title or not more than
three times the monetary equivalent of the thing of value, whichever is
greater, or imprisoned for not more than fifteen years, or both, and may
be disqualified from holding any office of honor, trust, or profit
under the United States," 18 U.S.C. 203(b)(3), (4). |
| 320.
|
United States v. Muhammad, 120 F.3d 688, 693 (7th Cir. 1997), citing United States v. Gallo, 863 F.2d 185, 189 (2d Cir. 1988); United States v. Ozcelik, 527 F.3d 88, 95 (3d Cir. 2008); United States v. White Eagle, 721 F.3d 1108, 1115 (9th Cir. 2013); United States v. Ring, 706 F.3d 460, 467 (D.C.Cir. 2013). |
| 321.
|
United States v. Orenuga, 430 F.3d 1158, 1165-166
(D.C. Cir. 2005)(finding no fault with a jury instruction which stated,
"It is not a defense to the crime of bribery that had there been no
bribe, the public official might have lawfully and properly performed
the same act"); United States v. Quinn, 359 F.3d 666, 675 (4th
Cir. 2004)("it does not matter whether the government official would
have to change his or her conduct to satisfy the payor's expectations");
United States v. Alfisi, 308 F.3d 144, 150-51(2d Cir.
2002)(rejecting the defendant's contention that the money given the
public official was to ensure an honest and accurate inspection). |
| 322.
|
United States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999); United States v. Heard, 709 F.3d 413, 419-20 (5th Cir. 2013); United States v. Ring, 706 F.3d 460,470 (D.C.Cir. 2013); United States v. McNair, 605 F.3d 1152, 1190-191 (11th Cir. 2010). |
| 323.
|
18 U.S.C. 201(a)(1)("the term 'public official' means
Member of Congress, Delegate, or Resident Commissioner, either before or
after such official has qualified, or an officer or employee or person
acting for or on behalf of the United States, or any department, agency
or branch of Government thereof, including the District of Columbia, in
any official function, under or by authority of any such department,
agency, or branch of Government, or a juror"). |
| 324.
|
Dixson v. United States, 465 U.S. 482, 496
(1984)(officials of a private organization, contracted by the city, to
administer a federal program under which the city received funds); United States v. Whiteford, 676 F.3d 348, 358 (3d Cir. 2012)(Army reservists deployed to Iraq); United States v. Baymon, 312 F.3d 725, 728-29 (5th Cir. 2002)(cook at a federal prison); United States v. Kenney, 185 F.3d 1217, 1222 (11th Cir. 1999)(defense contractor employee who assisted Air Force to procure material and equipment). |
| 325.
|
18 U.S.C. 201(a)(3)("the term 'official act' means any
decision or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by law be
brought before any public official, in such official's official
capacity, or in such official's place of trust or profit"); United States v. Jefferson, 674 F.3d 332, 357 (4th
Cir. 2012)(the term encompasses not only those acts prescribed by rule
and statute but those "clearly established by settled practice as part
of a public official's position" as long as "they pertain to a pending
question, matter, or cause ... before him"); United States v. Ring,
706 F.3d 460,470 (D.C.Cir. 2013)("'official acts' include acts that
have been established as part of an official's position by virtue of
past practice or custom"). |
| 326.
|
The judges of the District of Columbia Circuit recently
had great difficulty agreeing on whether a police officer had been
rewarded for an "official act," in violation of section 201's illegal
gratuity prohibition, when he checked police department databases for
motor vehicle and outstanding arrest warrant information unrelated in
any police investigation. Six members of the court held that the term
"official act" does not include everything a public official is
authorized to do and reversed the officer's conviction, Valdes v. United States, 475 F.3d 1319, 1323-326 (D.C. Cir. 2007). Five members dissented, id. at 1333. See also United States v. Dixon, 525 F.3d 1033, 1041 (11th Cir. 2008) (citing the Valdes dissent and precedent under an earlier version of §201). |
| 327.
|
United States v. Jennings, 160 F.3d 1006, 1013, 1014 (4th
Cir. 1998)("A good will gift to an official to foster a favorable
business climate, given simply with the generalized hope or expectation
of ultimate benefit on the part of the donor does not constitute a
bribe." But, "It is not necessary for the government to prove that the
payor intended to induce the official to perform a set number of
official acts in return for the payments ... For example, payments may
be made with the intent to retain the official's services on an as
needed basis, so that whenever the opportunity presents itself the
official will take specific action on the payor's behalf"); United States v. Kemp,
500 F.3d 257, 282 (3d Cir. 2007)(emphasis of the court) ("Moreover, we
agree with the government that the District Court's instruction to the
jury that it could convict upon finding a 'stream of benefits' was
legally correct. The key to whether a gift constitutes a bribe is
whether the parties intended for the benefit to be made in exchange for
some official action; the government need not prove that each gift was
provided with the intent to prompt a specific official act. See United States v. Jennings, 160 F.3d 1006, 1014 (4th
Cir.1998). Rather, '[t]he quid pro quo requirement is satisfied so long
as the evidence shows a course of conduct of favors and gifts flowing
to a public official in exchange for a pattern of official actions favorable to the donor.' Id.
Thus, 'payments may be made with the intent to retain the official's
services on an as needed basis, so that whenever the opportunity
presents itself the official will take specific action on the payor's
behalf.' Id.; see also United States v. Sawyer, 85 F.3d 713, 730 (1st
Cir.1996) (stating that 'a person with continuing and long-term
interests before an official might engage in a pattern of repeated,
intentional gratuity offenses in order to coax ongoing favorable
official action in derogation of the public's right to impartial
official services'). While the form and number of gifts may vary, the
gifts still constitute a bribe as long as the essential intent-a
specific intent to give or receive something of value in exchange for an official act-exists"). |
| 328.
|
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vac'd for rehearing en banc, 144 F.3d 1361 (10th Cir. 1998). The decision was overturned en banc and its view uniformly rejected by other federal appellate courts, United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1998); United States v. Ihnatenko, 482 F.3d 1097, 1099-110 (9th Cir. 2007)(citing cases in the accord from the First, Fourth, Fifth, and Eighth Circuits); United States v. Souffront, 338 F.3d 809, 827 (7th Cir. 2003). |
| 329.
|
18 U.S.C. 201(d)("Paragraphs (3) and (4) of subsection (b)
and paragraphs (2) and (3) of subsection (c)[relating to bribery and
receipt of illegal gratuities involving witnesses] shall not be
construed to prohibit the payment or receipt of witness fees provided by
law, or the payment, by the party upon whose behalf a witness is called
and receipt by a witness, of the reasonable cost of travel and
subsistence incurred and the reasonable value of time lost in attendance
at any such trial, hearing, or proceeding, or in the case of expert
witnesses, a reasonable fee for time spent in the preparation of such
opinion, and in appearing and testifying"). |
| 330.
|
18 U.S.C. 201(c). |
| 331.
|
18 U.S.C. 201(b). |
| 332.
|
18 U.S.C. 1961(1), 1956(c)(7)(A). |
| 333.
|
18 U.S.C. 2, 3, 4, 371; United States v. Bowman, 260 U.S. 94, 98 (1922); Ford v. United States, 273 U.S. 593, 623 (1927). See e.g., United States v. White Eagle, 721 F.3d 1108, 1119-120 (9th Cir. 2013)(misprision); United States v. Ring, 706 F.3d 460, 464-65 (D.C.Cir. 2013)(conspiracy). |
| 334.
|
18 U.S.C. 666(a) and (b) provide: "(a) Whoever, if the
circumstance described in subsection (b) of this section exists- (1)
being an agent of an organization, or of a State, local, or Indian
tribal government, or any agency thereof ... (B) corruptly solicits or
demands for the benefit of any person, or accepts or agrees to accept,
anything of value from any person, intending to be influenced or
rewarded in connection with any business, transaction, or series of
transactions of such organization, government, or agency involving
anything of value of $5,000 or more; or (2) corruptly gives, offers, or
agrees to give anything of value to any person, with intent to influence
or reward an agent of an organization or of a State, local or Indian
tribal government, or any agency thereof, in connection with any
business, transaction, or series of transactions of such organization,
government, or agency involving anything of value of $5,000 or more;
shall be fined under this title, imprisoned not more than 10 years, or
both.
"(b) The circumstance referred to in subsection (a) of this
section is that the organization, government, or agency receives, in
any one year period, benefits in excess of $10,000 under a Federal
program involving a grant, contract, subsidy, loan, guarantee,
insurance, or other form of Federal assistance." |
| 335.
|
Salinas v. United States, 522 U.S. 52, 58
(1997)("Before §666 was enacted, the federal criminal code contained a
single, general bribery provision codified at 18 U.S.C. 201.... The
Courts of Appeals divided over whether state and local employees could
be considered public officials' under §201(a).... Congress enacted §666
and made it clear that federal law applies to bribes of the kind offered
to the state and local officials ... "); Sabri v. United States, 541 U.S. 600, 606 (2004). |
| 336.
|
Sabri v. United States, 541 U.S. 600, 602 (2004). |
| 337.
|
18 U.S.C. 666(d)(1)("the term 'agent' means a person
authorized to act on behalf of another person or a government and, in
the case of an organization or government, includes a servant or
employee, and a partner, director, officer, manager, and
representative"). |
| 338.
|
Salinas v. United States, 522 U.S. 52, 60-1
(1997)("The text of §666(a)(1)(B) is unambiguous on the point under
consideration here, and it does not require the Government to prove
federal funds were involved in the bribery transaction"); United States v. Reagan, 725 F.3d 471, 483 (5th Cir. 2013). |
| 339.
|
Compare United States v. Whitfield, 590 F.3d 325, 344 (5th
Cir. 2009)("[W]e [have] held that for an individual to be an 'agent'
for the purposes of section 666, he must be authorized to act on behalf
of the agency with respect to its funds"), with United States v. Keen, 676 F.3d 891, 989-90 (11th
Cir. 2012)("The statute defines an 'agent' as 'a person authorized to
act on behalf of [a recipient].' ... Nowhere does the statutory text
either mention or imply an additional qualifying requirement that the
person be authorized to act specifically with respect to the entity's
funds"); see also United States v. Fernandez, 722 F.3d 1, 10 (1st Cir. 2013); United States v. Andrews,
681 F.3d 509, 530 (3d Cir. 2012)("Harris, who qualified as an 'agent'
under §666, did not have to possess actual authority over the business,
transaction, or series of transactions that Andrews sought to
influence"). |
| 340.
|
Section 666 protects any organization as well as any
state, local, or tribal government, plus any agency of such a
governmental entity, 18 U.S.C. 666(a)(1)(B), (a)(2). Section 666(d)(2)
defines the protected governmental agencies as any "subdivision of the
executive, legislative, judicial, or other branch of government,
including a department, independent establishment, commission,
administration, authority, board, and bureau, and a corporation or other
legal entity established, and subject to control, by a government or
governments for the execution of a governmental or intergovernmental
program," 18 U.S.C. 666(d)(2); e.g., United States v. Robinson, 663 F.3d 265, 270 n.2 (7th Cir. 2011)(the Chicago Police Department qualifies as governmental agencies for purposes of §666). |
| 341.
|
18 U.S.C. 666(d)(5)("the term 'in any one-year period'
means a continuous period that commences no earlier than twelve months
before the commission of the offense or that ends no later than twelve
months after the commission of the offense. Such period may include time
both before and after the commission of the offense"); United States v. Keen, 676 F.3d 981, 989 n.2 (11th Cir. 2012). |
| 342.
|
18 U.S.C. 666(c)("This section does not apply to bona
fide salary, wages, fees, or other compensation paid, or expenses paid
or reimbursed, in the usual course of business"). |
| 343.
|
See e.g., United States v. Rosen, 716
F.3d 691, 700 (2d Cir. 2013)("To establish the corrupt intent necessary
to a bribery conviction, the Government must prove that the defendant
had a specific intent to give ... something of value in exchange for an
official act"); United States v. Garrido, 713 F.3d 985, 1002 (9th
Cir. 2013)(internal citations omitted)("[T]he Eleventh Circuit has
interpreted the word 'corruptly' to mean 'dishonestly seeking an illegal
goal or a legal goal illegally.' We agree with the Eleventh Circuit
that the requirement of a corrupt intent in §666 narrow[s] the conduct
that violates §666 but does not impose a specific quid pro quo requirement "); United States v. Bahel, 662 F.3d 610, 638 (2d Cir. 2011)("In United States v. Rooney,
37 F.3d 847 (2d Cir. 1994), we considered the meaning of the term
'corrupt' as used in Section 666, concluding that a 'fundamental
component of a 'corrupt' act is a breach of some official duty owed to
the government or the public at large"); United States v. McNair, 605 F.3d 1152, 1188 (11th
Cir. 2010)("In all the trials consolidated in this appeal, the district
court's jury charge, with slight variations, defined 'corrupt' as
follows: 'An act is done corruptly if it is performed voluntarily,
deliberately and dishonestly for the purpose of either accomplishing an
unlawful end or result or of accomplishing some otherwise lawful end or
lawful result by any unlawful methods or means.' It is acting
'corruptly'—dishonestly seeking an illegal goal or a legal goal
illegally—that separates permissible form criminal. The addition of a
corrupt mens rea avoids prosecution for acceptable business practices"). |
| 344.
|
United States v. Garrido, 713 F.3d 985, 996-96 (9th Cir. 2013)(emphasis in the original), quoting United States v. Sun Diamond Growers of California, 526 U.S. 398, 405-405 (1999)("A quid pro quo in bribery is the 'specific intent to give or receive something of value in exchange for an official act'"). |
| 345.
|
United States v. Garrido, 713 F.3d 985, 996-97 (9th Cir. 2013)("§666 does not require a jury to find a specific quid pro quo"); United States v. Boender, 649 F.3d 650, 654 (7th Cir. 2011)(unnecessary to prove specific quid pro quo with respect to either §666 (a)(1)(B)(asks for a bribe) or §666 (a)(2)(offers a bribe); United States v. McNair, 605 F.3d 1152, 1188 (11th
Cir. 2010)("To be sure, many §666 bribery cases will involve an
identifiable and particularized official act, but that is not required
to convict. Simply put, the government is not required to tie or
directly link a benefit or payment to a specific official act.... The
intent that must be proven is an intent to corruptly influence or to be
influenced 'in connection with any business' or 'transaction,' not an
intent to engage in any specific quid pro quo"); United States v. Abbey, 560 F.3d 513, 520 (6th Cir. 2009); but see United States v. Hamilton, 701 F.3d 404, 409 (4th
Cir. 2012)(emphasis added)("To establish the corrupt intent necessary
for the convictions [under 18 U.S.C. 666 and 1951] at issue here, the
Government had to present evidence of 'an exchange of money (or gifts)
for specific official action.' United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)"); United States v. Rosen,
716 F.3d 691, 700 (2d Cir. 2013)(internal citations omitted)("We have
made it crystal clear that the federal bribery and honest services fraud
statutes under that Rosen was convicted of violating [18 U.S.C. 666 and
1346] criminalize schemes involving payments at regular intervals in
exchange for specific official acts as the opportunities to commit those
acts arise, even if the opportunity to undertake the requested act has
not arisen, and even if the payment is exchanged for a particular act
but given with the expectation that the official will exercise
particular kinds of influence. Once the quid pro quo has been established, the specific transactions comprising the illegal scheme need not match up this for that"); United States v. Bryant, 655 F.3d 242, 246 n.16 (3d Cir. 2011)("The Government argues that §666 does not require proof of a quid pro quo
in any event. Because we believe that the instruction did require the
jury to find an exchange, we need not decide that question today"). |
| 346.
|
Salinas v. United States, 522 U.S. 52, 57 (1997). |
| 347.
|
18 U.S.C. 666(a)(s). The language in 18 U.S.C. 666(a)(1)(B) is comparable. |
| 348.
|
United States v. Fernandez, 722 F.3d 1, 12 (1st
Cir. 2013)("In determining how to calculate the $5,000 requirements,
some courts have suggested that court should look to the value of the
bribe actually offered or paid. See United States v. Abbey, 560 F.3d 513, 521 (6th Cir. 2009) ... United States v. Spano, 401 F.3d 837, 893 (7th Cir. 2005) ... United States v. LaHue, 170 F.3d 1026, 1028 (10th
Cir. 1999).... Other courts, however, have held that the $5,000
requirement 'refers to the value of the business, transaction, or series
of transactions, not the value of the bribe.' United States v. McNair, 605 F.3d 1152, 1185 n.38 (11th Cir. 2010); see also United States v. Duvall, 846 F.2d 966, 976 (5th Cir. 1988).... In our view, the statutory language is unambiguous and plainly requires the latter reading"); United States v. Owens, 697 F.3d 657, 659 (7th
Cir. 2012)("The subject matter of the bribe must be valued at $5,000 or
more; the bribe itself need only be anything of value"). As a practical
matter, if the amount of the bribe is more than $5,000, the value of
the targeted transaction is likely to be considerably more, United States v. Robinson, 663 F.3d 265, 275 (7th
Cir. 2011)("When the bribe is aimed at the intangible business or
transactions of a federally funded entity, what kind of evidence will
suffice to prove that the business or transaction at issue was worth at
least $5,000.... Without excluding other possible methods of valuation,
we agree that the amount of the bribe may suffice as proxy for value; at
least it provides a floor for the valuation question"). |
| 349.
|
United States v. Fernandez, 722 F.3d 1, 23, 25-6 (1st
Cir. 2013)(parenthetical case summaries omitted)("The word 'reward' in
§666 is open to (at least) two different interpretations. Under the
first interpretation, when a payor intends to influence an official's
future actions, the payment constitutes a bribe; when a payor intends to
reward the official's past conduct (or future conduct the official is
already committed to taking), the payment constitutes a gratuity. United States v. Anderson, 517 F.3d 953, 961 (7th Cir. 2008). Several circuits have adopted this reading of the language. Id.; United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 1007); United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007); United States v. Agostino, 132 F.3d 1183, 1195 (7th
Cir. 1997). Under the second interpretation, the word 'reward' does not
create a separate gratuity offense in §666, but rather serves a more
modest purpose: it merely clarifies 'that a bribe can be promised
before, but paid after, the official's action on the payor's behalf.' United States v. Jennings, 160 F.3d 1006, 1015 n.3 (4th
Cir. 1998).... Other than the ambiguous use of the word 'rewarded,' the
text of §666, as well as its legislative history and purpose, do not
support the argument that Congress intended the statute to reach
gratuities.... We ... hold that gratuities are not criminalized under
§666"); see also United States v. Bahel, 662 F.3d 610,
636-38 (2d Cir. 2011)(Section "666 extends to both bribes—where the
thing of value is part of a quid pro quo—and gratuities—where the thing
of value is a reward rather than a bargained for exchange"). |
| 350.
|
United States v. Robinson, 663 F.3d 265, 274 (7th
Cir. 2011)("The 'business' of a federally funded 'organization,
government, or agency' is not commonly 'business' in the commercial
sense of the word. An interpretation that narrowly limits the scope of
the transaction element to business or transactions that are commercial
in nature would have the effect of excluding bribes paid to influence
agents of state and local governments. This contradicts the express
statutory text"), quoted with approval in United States v. Fernandez, 722 F.3d. 1, 14 (1st Cir. 2013). |
| 351.
|
18 U.S.C. 666(a). |
| 352.
|
18 U.S.C. 1961(1), 1956(c)(7)(A). |
| 353.
|
18 U.S.C. 1961(1)("'racketeering activity' means (A) any
act ... involving ... bribery ... which is chargeable under State law
and punishable by imprisonment for more than one year "), 1956(c)(7)(A). |
| 354.
|
E.g., United States v. Reagan, 725 F.3d 471, 482-83 (5th Cir. 2013)(aiding and abetting); United States v. Rosen, 716 F.3d 691, 698 n.3 (2d Cir. 2013)(conspiracy); United States v. Newell, 658 F.3d 1, 18-9 (1st Cir. 2011)(co-conspirator liability). |
| 355.
|
For addition discussion of 18 U.S.C. 1341, 1343, and 1346 see Twenty-Eighth Survey of White Collar Crime: Mail and Wire Fraud, 50 American Criminal Law Review 1245 (2013). |
| 356.
|
United States v. Simpson, 741 F.3d 539, 548 (5th
Cir. 2014)("The elements of mail fraud under 18 U.S.C. 1341 are (1) a
scheme to defraud; (2) use of the mails to execute the scheme; and (3)
the specific intent to defraud"); United States v. Vilar, 729 F.3d 62, 91 n.26 (2d Cir. 2013); United States v. Jirak, 728 F.3d 806, 812 n.5 (8th Cir. 2013).
18 U.S.C. 1341("Whoever, having devised or intending to
devise any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, representations, or
promises, or to sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for unlawful use any
counterfeit or spurious coin, obligation, security, or other article, or
anything represented to be or intimated or held out to be such
counterfeit or spurious article, for the purpose of executing such
scheme or artifice or attempting so to do, places in any post office or
authorized depository for mail matter, any matter or thing whatever to
be sent or delivered by the Postal Service, or deposits or causes to be
deposited any matter or thing whatever to be sent or delivered by any
private or commercial interstate carrier, or takes or receives
therefrom, any such matter or thing, or knowingly causes to be delivered
by mail or such carrier according to the direction thereon, or at the
place at which it is directed to be delivered by the person to whom it
is addressed, any such matter or thing, shall be fined under this title
or imprisoned not more than 20 years, or both. If the violation affects a
financial institution, such person shall be fined not more than
$1,000,000 or imprisoned not more than 30 years, or both"). |
| 357.
|
United States v. Simpson, 741 F.3d 539, 547-48 (5th Cir. 2014); United States v. Rodriguez, 732 F.3d 1299, 1303 (11th
Cir. 2013)("[I]n order to support a conviction for wire fraud, the
evidence at trial must show that the defendant (1) intentionally
participated in a scheme or artifice to defraud another of money or
property, and (2) used or cause the use of wires for the purpose of
executing the scheme or artifice"); United States v. Appolon, 715 F.3d 361, 367 (1st Cir. 2013).
18 U.S.C. 1343 ("Whoever, having devised or intending to
devise any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, representations, or
promises, transmits or causes to be transmitted by means of wire, radio,
or television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined under this title or
imprisoned not more than 20 years, or both. If the violation affects a
financial institution, such person shall be fined not more than
$1,000,000 or imprisoned not more than 30 years, or both"). |
| 358.
|
Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005)("we have construed identical language in the wire and mail fraud statutes in pari materia"), citing Neder v. United States, 527 U.S. 1, 20 (1999) and Carpenter v. United States, 484 U.S. 19, 25 and n.6 (1987); see also United States v. Helton, 737 F.3d 1121, 1129 n.4 (7th
Cir. 2013) ("Though we are discussing wire fraud, we may draw upon
reasoning from mail fraud cases, as cases construing the mail fraud
statute are applicable to the wire fraud statute"); United States v. Cole, 721 F.3d 1016, 1021 (8th Cir. 2013). |
| 359.
|
McNally v. United States, 483 U.S. 350, 358 (1987); see also United States v. Wynn, 684 F.3d 473, 890 (4th Cir. 2012); United States v. Barrington, 648 F.3d 1178, 1191 (11h Cir. 2011); United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010). |
| 360.
|
Neder v. United States, 527 U.S. 1, 20-26 (1999); see also United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013); United States v. Read, 710 F.3d 219, 227 (5th Cir. 2012); United States v. Gillion, 704 F.3d 284, 296 (4th Cir. 2013). |
| 361.
|
Neder v. United States, 527 U.S. at 22 n .5 ("The
Restatement instructs that a matter is material if '(a) a reasonable
man would attach importance to its existence or nonexistence in
determining his choice of action in the transaction in question; or (b)
the maker of the representation knows or has reason to know that its
recipient regards or is likely to regard the matter as important in
determining his choice of action, although a reasonable man would not so
regard it.' Restatement (Second) of Torts §538 (1977)")1, 20-6 (1999); United States v. Wynn, 684 F.3d 473, 479-80 (4th Cir. 2012); United States v. Bryant, 606 F.3d 912, 917 (8th Cir. 2010); United States v. Maxwell, 579 F.3d 1282, 1922 (11th Cir. 2009); United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1122 (D.C. Cir. 2009). |
| 362.
|
United States v. Phipps, 595 F.3d 243, 245-46 (5th
Cir. 2010)("Mail and wire fraud are both specific intent crimes that
require the Government to prove that a defendant knew the scheme
involved false representations"); United States v. Imo, 739 F.3d 226, 236 (5th Cir. 2014); United States v White, 737 F.3d 1121, 1130 (7th Cir. 2013); United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013). |
| 363.
|
United States v. Aslan, 644 F.3d 526, 545 (7th
Cir. 2011)("The fraud is therefore complete once a defendant with the
requisite intent has used the wires in furtherance of a scheme to
defraud, whether or not the defendant actually collects any money or
property from the victim of the scheme"); United States v. Bradley, 644 F.3d 1213, 1239 (11th Cir. 2011); United States v. Schuler, 458 F.3d 1148, 1153 (10th Cir. 2006); United States v. Reifler, 446 F.3d 65, 96 (2d Cir. 2006). |
| 364.
|
United States v. White, 737 F.3d 1121, 1129 (7th
Cir. 2013)(internal citations omitted)("There is no requirement that
Ford personally cause the use of the wire. Rather, the third element of
wire fraud is met if the use of a wire 'will follow in the ordinary
course of business, or where such use can reasonably be foreseen, even
though not actually intended'"), quoting Pereira v. United States, 347 U.S. 1, 8-9 (1954); United States v. Appolon, 715 F.3d 362, 370 (1st Cir. 2013); United States v. Andrews, 681 F.3d 509, 528-29 (3d Cir. 2012). |
| 365.
|
Schmuck v. United States, 489 U.S. 705, 710-11
(1989)("To be part of the execution of the fraud, however, the use of
the mails need not be an essential element of the scheme. It is
sufficient for the mailing to be incident to an essential part of the
scheme or a step in the plot" ); United States v. Read, 710 F.3d 219, 227 (5th Cir. 2012); United States v. Gillion, 704 F.3d 284, 297 (4th Cir. 2012). |
| 366.
|
United States v. McNally, 483 U.S. 350, 361, 355 n.4 (1987). |
| 367.
|
Carpenter v. United States, 484 U.S. 19, 26-27 (1987). |
| 368.
|
Pasquantino v. United States, 544 U.S. 349, 357 (2005). |
| 369.
|
United States v. Brown, 459 F.3d 509, 521 (5th Cir. 2006); United States v. Rybicki, 354 F.3d 124, 139-44 (2d Cir. 2003). |
| 370.
|
United States v. Kemp, 500 F.3d 257, 279 (3d Cir. 2007); see also United States v. Walker, 490 F.3d 1282, 1297 (11th
Cir. 2007)("Public officials inherently owe a fiduciary duty to the
public to make governmental decisions in the public's best interest. If
an official instead secretly makes his decisions based on his own
personal interests—as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest—the official has deprived the public of his honest services")(emphasis added); United States v. Sawyer,
239 F.3d 31, 40 (2001)("[W]e noted two of the ways that a public
official can steal his honest services from his public employer: (1) the
official can be influenced or otherwise improperly affected in the
performance of his official duties; or (2) the official can fail to
disclose a conflict of interest resulting in personal gain"). |
| 371.
|
Skilling v. United States, 130 S.Ct. 2896, 2931
n. 43 (2010) ("Apprised that a broader reading of §1346 could render the
statute impermissibly vague, Congress, we believe, would have drawn the
honest-services line, as we do now, at bribery and kickback schemes") |
| 372.
|
Id. at 2933 (emphasis added). |
| 373.
|
18 U.S.C. 1341, 1343. Although not ordinarily relevant in
an obstruction of governmental functions context, mail and wire fraud
offenders face imprisonment for not more than 30 years and a fine of not
more than $1 million when a financial institution is the victim of the
fraud, id. |
| 374.
|
18 U.S.C. 1961(1), 1956(c)(7)(A). |
| 375.
|
18 U.S.C. 1951 ("(a) Whoever in any way or degree
obstructs, delays, or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts or conspires
so to do, or commits or threatens physical violence to any person or
property in furtherance of a plan or purpose to do anything in violation
of this section shall be fined under this title or imprisoned not more
than twenty years, or both. (b) As used in this section ... (2) The term
'extortion' means the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right. (3) The term
'commerce' means commerce within the District of Columbia, or any
Territory or Possession of the United States; all commerce between any
point in a State, Territory, Possession, or the District of Columbia and
any point outside thereof; all commerce between points within the same
State through any place outside such State; and all other commerce over
which the United States has jurisdiction.... "). |
| 376.
|
18 U.S.C. 1951(b)(2). |
| 377.
|
Evans v. United States, 504 U.S. 255, 268 (1992); United States v. McDonough, 727 F.3d 143, 155 (1st Cir. 2013); United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011); United States v. Manzo, 636 F. 3d 56, 60 (3d Cir. 2011); United States v. Kincaid-Chauncey, 556 F.3d 923, 936 (9th Cir. 2009); United States v. Vigil, 523 F.3d 1258, 1266 (10th Cir. 2008). |
| 378.
|
United States v. Regan, 725 F.3d 471, 484 (5th
Cir. 2013)(internal citations and quotation marks omitted)("[P]rivate
individuals can be convicted for extortion under color of official right
when they conspire with corrupt public officials, masquerade as public
officials or speak for a public official"); United States v. Kelley, 461 F.3d 817, 827 (6th Cir. 2006); United States v. Rubio, 321 F.3d 517, 521 (5th Cir. 2003); United States v. Hairston, 46 F.3d 361, 366 (4th Cir. 1995); United States v. Freeman, 6 F.3d 586, 593 (9th Cir. 1993); but see United States v. Manzo,
636 F.3d 56, 68-69 (3d Cir. 2011)("A Hobbs Act inchoate offense
prohibits a person acting under color of official right from attempting
or conspiring to use his or her public office in exchange for payments.
It does not prohibit a private person who is a candidate from attempting
or conspiring to use a future public office to extort money at a future
date"). |
| 379.
|
United States v. Abbas, 560 F.3d 660, 663 (7th Cir. 2009); United States v. Abbey, 560 F.3d 513, 517 (6th Cir. 2009); United States v. Foster, 443 F.3d 978, 984 (8th Cir. 2006)(the color of official right "element does not require an affirmative act of inducement by the official"). |
| 380.
|
Evans v. United States, 504 U.S. 255, 268
(1992)("the offense is completed at the time when the public official
receives a payment in return for his agreement to perform specific
official acts; fulfillment of the quid pro quo is not an element of the offense"); United States v. McDonough, 727 F.3d 143, 155 (1st Cir. 2013); United States v. Thompson, 647 F.3d 180, 187 (5th Cir. 2011); United States v. Abbey, 560 F.3d 513, 517 (6th Cir. 2009). |
| 381.
|
United States v. Kincaid-Chauncey, 556 F.3d 923, 936 (9th Cir. 2009)("[T]he government was required to prove ... at least a de minimis effect on commerce"); United States v. Rutland, 705 F.3d 1238, 1245 (10th Cir. 2013); United States v. Mann, 701 F.3d 274-295-96 (8th Cir. 2011); United States v. Powell, 693 F.3d 398, 405 (3d Cir. 2012). |
| 382.
|
18 U.S.C. 1951(a), 3571. |
| 383.
|
18 U.S.C. 1961(1), 1956(c)(7)(A). |
| 384.
|
18 U.S.C. 1951(a). |
| 385.
|
18 U.S.C. 1951(a); e.g., United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010); United States v. Merlino, 592 F.3d 22, 25 (1st Cir. 2010); United States v. Mausali, 590 F3d. 1077, 1079 (9th Cir. 2009). |
| 386.
|
E.g., Louisiana v. Guidry, 489 F.3d 692, 695 (5th
Cir. 2007)("Guidry successfully negotiated a plea agreement under which
he pleaded guilty in federal court to one count of conspiracy to commit
extortion in violation of 18 U.S.C. §§371 and 1951 ... "); United States v. Bornscheuer, 563 F.3d 1228, 1233-234 (11th Cir. 2009); United States v. Vazquez-Botet, 532 F.3d 37, 44 (1st Cir. 2008). |
| 387.
|
18 U.S.C. 4, 2, 3. |
| 388.
|
18 U.S.C. 1510 (1976 ed.). |
| 389.
|
18 U.S.C. 1510. Section 1510 now also contains tip-off offenses, 18 U.S.C. 1510(b), (d), discussed later in this report. |
| 390.
|
18 U.S.C. 1512(b)(3), (a)(1)(C), (a)(2)(C). |
| 391.
|
"As used in this section, the term 'criminal investigator'
means any individual duly authorized by a department, agency, or armed
force of the United States to conduct or engage in investigations of or
prosecutions for violations of the criminal laws of the United States,"
18 U.S.C. 1510(c). |
| 392.
|
"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). |
| 393.
|
18 U.S.C. 1961(1), 1956(c)(7)(A). |
| 394.
|
18 U.S.C. 1961(1), 1956(c)(7). |
| 395.
|
18 U.S.C. 371, 2, 3, 4. |
| 396.
|
18 U.S.C. 1519; United States v. Powell, 680 F.3d 350, 355-56 (4th
Cir. 2012)("A plain reading of the pertinent language of §1519 requires
the government to prove the following elements: (1) the defendant made a
false entry in a record, document, or tangible object; (2) the
defendant did so knowingly; and (3) the defendant intended to impede,
obstruct, or influence the investigation ... "). |
| 397.
|
United States v. McQueen, 727 F.3d 1144, 1151-152 (11th
Cir. 2013)("Section 1519's language requires only that criminal
defendant 'knowingly' alter, destroy mutilate, conceal, cover up,
falsify, or make a false entry. There is nothing in the language that
suggests the defendant must also know that any possible investigation is
federal in nature.... [A]s we see it, 'any matter within the
jurisdiction' is merely a jurisdictional element, for which no mens rea
is required.... Every court of appeals that has addressed this issue has
reached the same conclusion"), citing in accord, United States v. Moyer, 674 F.3d 192, 208 (3d Cir. 2012); United States v. Yielding, 657 F.3d 688, 710 (8th Cir. 2011); United States v. Gray, 642 F.3d 371, 378 (2d Cir. 2011); United States v. Kernell, 667 F.3d 746, 752-56 (6th Cir. 2012). |
| 398.
|
E.g., United States v. Yates, 733 F.3d 1059, 1064 (11th Cir. 2013)(fish thrown overboard to frustrate the investigation of illegal fishing); United States v. McRae, 702 F.3d 806, 833-34 (5th Cir. 2012)(burning a car with a dead body in it). |
| 399.
|
"Section 1519 is meant to apply broadly to any acts to
destroy or fabricate physical evidence so long as they are done with the
intent to obstruct, impede or influence the investigation or proper
administration of any matter, and such matter is within the jurisdiction
of an agency of the United States, or such acts [are] done either in
relation to or in contemplation of such a matter or investigation. This
statute is specifically meant not to include any technical requirements,
which some courts have read into other obstruction of justice statutes,
to tie the obstructive conduct to a pending or imminent proceeding or
matter. It is also sufficient that the act is done 'in contemplation' of
or in relation to a matter or investigation. It is also meant to do
away with the distinctions, which some courts have read into obstruction
statutes, between court proceedings, investigations, regulatory or
administrative proceedings (whether formal or not) and less formal
government inquiries, regardless of their title. Destroying or
falsifying documents to obstruct any of these types of matters or
investigations, which in fact are proved to be within the jurisdiction
of any federal agency are covered by this statute. See 18 U.S.C. 1001. Questions of criminal intent are, as in all cases, appropriately decided by a jury on a case-by-case basis.
It also extends to acts done in contemplation of such federal matters,
so that the time of the act in relation to the beginning of the matter
or investigation is also not a bar to prosecution. The intent of the
provision is simple; people should not be destroying, altering, or
falsifying documents offline to obstruct any government function.
Finally, this section could also be used to prosecute a person who
actually destroys the records himself in addition to one who persuades
another to do so, ending yet another technical distinction which burdens
successful prosecution of wrongdoers. See 18 U.S.C. 1512(b)," S.Rept. 107-146,
at 14-5 (2002)(emphasis added; citations to sections 1001 and 1512(b)
appear in footnotes 15 and 16 respectively in the report). |
| 400.
|
Id. at 7 ("Indeed, even in the current Andersen
case, prosecutors have been forced to use the witness tampering statute,
18 U.S.C. 1512, and to proceed under the legal fiction that the
defendants are being prosecuted for telling other people to shred
documents, not simply for destroying evidence themselves. Although
prosecutors have been able to bring charges thus far in the case, in a
case with a single person doing the shredding, this legal hurdle might
present an insurmountable bar to a successful prosecution. When a person
destroys evidence with the intent of obstructing any type of
investigation, and the matter is within the jurisdiction of a federal
agency, overly technical legal distinctions should neither hinder nor
prevent prosecution and punishment"). |
| 401.
|
Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). |
| 402.
|
United States v. Lessner, 498 F.3d 185, 196 (3d Cir. 2007); Anticipatory
Obstruction of Justice: Pre-Emptive Document Destruction under the
Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. §1519, 89 Cornell Law Review 1519 (2004). |
| 403.
|
E.g., United States v. Moore, 708 F.3d 639, 648-49 (5th Cir. 2013); United States v. Fontenot, 611 F.3d 734, 735-36 (11th Cir. 2010); United States v. Holden, 557 F.3d 698, 700 (6th Cir. 2009). |
| 404.
|
See e.g., United States v. Lanham, 617 F.3d 873, 887 (6th
Cir. 2010)("Lanham also argues that there had to be an ongoing or
imminent federal investigation at the time reports were written to meet
the requirements of the statute. The language in 18 U.S.C. §1519 clearly
states that the falsification could be done 'in relation to or
contemplation of any' investigation or matter within United States
jurisdiction. The conspiracy to harm J.S. was within the jurisdiction of
the United States, and the falsification was presumably done in
contemplation of an investigation that might occur"); United States v. McRae, 702 F.3d 806, 837 (5th
Cir. 2012)("Other circuits ... have construed the statute as
criminalizing three circumstances involving a matter within the
jurisdiction of a federal agency and a defendant acting with an
obstructive intent: (1) when a defendant acts directly with respect to
the investigation or proper administration of any matter, that is, a
pending matter, (2) when a defendant acts in contemplation of any such
matter, and (3) when a defendant acts in relation to any such matter"). |
| 405.
|
Hubbard v. United States, 514 U.S. 695, 715 (1995), overruling, United States v. Bramblett, 348 U.S. 503 (1955). The Court in Bramblett
had held that the word "department" as used in Section 1001 "was meant
to describe the executive, legislative and judicial branches of the
government," 348 U.S. at 509. |
| 406.
|
E.g., United States v. Holstein, 618 F.3d 610 (7th Cir. 2010). |
| 407.
|
United States v. Hoffman-Vaile, 568 F.3d 1335, 1343 (11th
Cir. 2009)("Because the Department of Health and Human Services, which
is a 'department or agency of the United States,' conducted the
investigation of Dr. Hoffman-Vaile and the grand jury subpoenaed the
missing records 'in relation to or in contemplation of this
investigation, her failure to produce the records with the photographs
intact is obstructive conduct under section 1519"); cf., In re Grand Jury Investigation,
445 F.3d 266, 275-76 & n.3 (3d Cir. 2006). The case involved the
application of the crime fraud exception to the attorney-client
privilege and the court concluded, "we agree that there was sufficient
evidence to support the District Court's finding that Jane Doe could be
found to have engaged in the ongoing crime of obstruction of justice.
[The government apparently relies on 18 U.S.C. 1519, which provides ...
There are other provisions arguably applicable and we do not limit our
analysis to Section 1519]," id. (pertinent portions of footnote 3 of the court's opinion in brackets). |
| 408.
|
"(a)(1) Any accountant who conducts an audit of an issuer
of securities to which Section 10A(a) of the Securities Exchange Act of
1934 (15 U.S.C. 78j-1(a)) applies, shall maintain all audit or review
workpapers for a period of five years from the end of the fiscal period
in which the audit or review was concluded. (2) The Securities and
Exchange Commission shall promulgate, within 180 days, after adequate
notice and an opportunity for comment, such rules and regulations, as
are reasonably necessary, relating to the retention of relevant records
such as workpapers, documents that form the basis of an audit or review,
memoranda, correspondence, communications, other documents, and records
(including electronic records) which are created, sent, or received in
connection with an audit or review and contain conclusions, opinions,
analyses, or financial data relating to such an audit or review, which
is conducted by any accountant who conducts an audit of an issuer of
securities to which Section 10A(a) of the Securities Exchange Act of
1934 (15 U.S.C. 78j-1(a)) applies. The Commission may, from time to
time, amend or supplement the rules and regulations that it is required
to promulgate under this section, after adequate notice and an
opportunity for comment, in order to ensure that such rules and
regulations adequately comport with the purposes of this section.
"(b) Whoever knowingly and willfully violates subsection
(a)(1), or any rule or regulation promulgated by the Securities and
Exchange Commission under subsection (a)(2), shall be fined under this
title, imprisoned not more than 10 years, or both.
"(c) Nothing in this section shall be deemed to diminish
or relieve any person of any other duty or obligation imposed by Federal
or State law or regulation to maintain, or refrain from destroying, any
document," 18 U.S.C. 1520. Other audit obstruction offenses include 18
U.S.C. 1516 (obstructing a federal audit), 1517 (obstructing a bank
examination). |
| 409.
|
18 U.S.C. 1520(b), 3571. |
| 410.
|
United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005). |
| 411.
|
Id. at 661; cf., United States v. Lessner, 498 F.3d 185, 198 (3d Cir. 2007). |
| 412.
|
E.g., United States v. Keele, 742 F.3d 192, 194 (5th Cir. 2014). |
| 413.
|
E.g., United States. v. Yates, 733 F.3d 1059, 1061 (11th Cir. 2013); United States v. Rappe, 614 F.3d 332, 332 (7th Cir. 2010); United States v. Vosburgh, 602 F.3d 512, 521 (3d Cir. 2010). |
| 414.
|
18 U.S.C. 2232(a), 3571. |
| 415.
|
18 U.S.C. 1961(1), 1956(c)(7). |
| 416.
|
18 U.S.C. 2, 3, 4, 371. |
| 417.
|
E.g., United States v. Atalig, 502 F.3d 1063, 1065 (9th Cir. 2007)(conspiracy to violate 18 U.S.C. 1001); cf., United States v. Dunne, 324 F.3d 1158, 1162-163 (10th Cir. 2003). |
| 418.
|
18 U.S.C. 1621 ("This section is applicable whether the
statement or subscription is made within or without the United States");
18 U.S.C. 1623 ("This section is applicable whether the conduct
occurred within or without the United States"). |
| 419.
|
United States v. Walczak, 783 F.2d 852, 854-55 (9th Cir. 1986). |
| 420.
|
Dunn v. United States, 442 U.S. 100, 107 (1979), citing, S.Rep.No. 91-617, at 58-9 (1969)(internal citations omitted). |
| 421.
|
18 U.S.C. 1623(c). |
| 422.
|
18 U.S.C. 1623(d). |
| 423.
|
18 U.S.C. 1623(e). |
| 424.
|
18 U.S.C. 1623(a). |
| 425.
|
"Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to law, any
matter is required or permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the person making the same
(other than a deposition, or an oath of office, or an oath required to
be taken before a specified official other than a notary public), such
matter may, with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
"(1) If executed without the United States: 'I declare (or
certify, verify, or state) under penalty of perjury under the laws of
the United States of America that the foregoing is true and correct.
Executed on (date).
(Signature)'.
"(2) If executed within the United States, its territories,
possessions, or commonwealths: 'I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date).
(Signature)'." |
| 426.
|
18 U.S.C. 1623(a). |
| 427.
|
United States v. Strohm, 671 F.3d 1173, 1178 (10th
Cir. 2011)(brackets in the original)("To prove perjury under §1623(a),
the government must demonstrate (1) the defendant made a declaration
under oath before a [court]; (2) such declaration was false; (3) the
defendant knew the declaration was false and (4) the false declaration
was material to the [court's] inquiry"); United States v. Ramirez, 635 F.3d 249, 260 (6th
Cir. 2011)("A conviction under §1623(a) requires proof that the
defendant (1) knowingly made, (2) a materially false declaration (3)
under oath (4) before a federal grand jury"); United States v. Gorman, 613 F.3d 711, 715-16 (7th
Cir. 2010)("To support a conviction for perjury beyond a reasonable
doubt, the government had the burden of proving that (1) the defendant,
while under oath, testified falsely before the grand jury; (2) his
testimony related to some material matter; and (3) he knew that
testimony was false"); see also United States v. Wu, 716 F.3d 159, 173 (5th
Cir. 2013)("To obtain a perjury conviction, the Government must prove
(1) that the defendant's statements were material; (2) false; and (3) at
the time the statements were made the defendant did not believe them to
be true"). |
| 428.
|
Dunn v. United States, 442 U.S. 100, 111-12 (1979). |
| 429.
|
Id.; United States v. Wu, 716 F.3d 159, 173 (5th Cir. 2013); United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998); United States v. Holland, 22 F.3d 1040, 1047-48 (11th Cir. 1994); United States v. McAfee, 8 F.3d 1010, 1013-14 (5th Cir. 1993). |
| 430.
|
United States v. Farmer, 137 F.3d 1265 (11th Cir. 1998). |
| 431.
|
United States v. Johnson, 325 F.3d 205, 209 (4th Cir. 2003). |
| 432.
|
United States v. Greene, 591 F.2d 471 (8th Cir. 1979). |
| 433.
|
United States v. Durham, 139 F.3d 1325 (10th Cir. 1998). |
| 434.
|
United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998). |
| 435.
|
Bronston v. United States, 409 U.S. 352, 358-59 (1973). |
| 436.
|
United States v. Gorman, 613 F.3d 711, 716 (7th Cir. 2010); United States v. Thomas, 612 F.3d 1107, 1114-115 (9th Cir. 2010); United States v. Richardson, 421 F.3d 17, 32-3 (1st Cir. 2005); United States v. Shotts, 145 F.3d 1289, 1297 (11th Cir. 1998); United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1996). |
| 437.
|
United States v. Fawley, 137 F.3d 458, 466 (7th Cir. 1998); United States v. Reveron Martinez, 836 F.2d 684, 689 (1st Cir. 1988); cf., United States v. Dunnigan, 507 U.S. 87, 94 (1993). |
| 438.
|
United States v. Fawley, 137 F.3d 458, 466-67 (7th Cir. 1998). |
| 439.
|
United States v. Richardson, 421 F.3d 17, 33 (1st Cir. 2005); see also United States v. Strohm, 671 F.3d 1173, 1179-1181 (10th
Cir. 2011)("An answer is not a knowing false statement if the witness
responds to an ambiguous question with what he or she believes to be a
truthful answer.... The case law has divided linguistic ambiguity into
one of two flavors—fundamental or arguable.... A question is
fundamentally ambiguous in narrow circumstances. To qualify,.... the
question itself is excessively vague, making it impossible to
know—without guessing—the meaning of the question and whether a witness
intended to make a false response ... But fundamental ambiguity is the
exception, not the rule.... A question is arguably ambiguous where more
than one reasonable interpretation of a question exists"); United States v. DeZarn, 157 F.3d 1042, 1049 (6th Cir. 1998); see also United States v. Turner, 500 F.3d 685, 689 (8th
Cir. 2007)("If, however, a question is fundamentally vague or
ambiguous, then an answer to that question cannot sustain a perjury
conviction"). |
| 440.
|
United States v. Strohm, 671 F.3d 1173, 1178 (10th Cir. 2011)("Simply plumbing a question for post hoc
ambiguity will not defeat a perjury conviction where the evidence
demonstrates the defendant understood the question in context and gave a
knowingly false answer"); United States v. McKenna, 327 F.3d 830, 841 (9th
Cir. 2003)("A question leading to a statement supporting a perjury
conviction is not fundamentally ambiguous where the jury could conclude
beyond a reasonable doubt that the defendant understood the question as
did the government and that so understood, the defendant's answer was
false"); United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006); United States v. Turner, 500 F.3d 685, 690 (8th Cir. 2007); United States v. Gorman, 613 F.3d 711, 716 (7th Cir. 2010). |
| 441.
|
United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006), citing, United States v. Gaudin, 515 U.S. 506, 509 (1995), and Kungys v. United States, 485 U.S. 759, 770 (1988); see also United States v. Strohm, 671 F.3d 1173, 1186 (10th Cir. 2011); United States v. Benkahla, 530 F.3d 300, 310 (4th Cir. 2008); United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Lee, 359 F.3d 412, 417 (6th Cir. 2003); United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998). |
| 442.
|
United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), comparing, United States v. Kross, 14 F.3d 751, 754 (2d Cir. 1994), and United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), with, United States v. Adams, 870 F.2d 1140, 1146-148 (6th Cir. 1989) and United States v. Clark, 918 F.2d 843, 846 (9th Cir.1990), overruled on other grounds, United States v. Keys, 133 F.3d 1282, 1286 (9th Cir,. 1998); see also United States v. McKenna, 327 F.3d 830, 839-40 (9th Cir. 2003)(acknowledging the division and continuing to adhere to the view expressed in Clark). |
| 443.
|
E.g., United States v. Brown, 459 F.3d 509, 530 n.18 (5th
Cir. 2006)("The materiality requirement of §1623 has been satisfied in
cases where the false testimony was relevant to any subsidiary issue or
was capable of supplying a link to the main issue under consideration");
United States v. Silveira, 426 F.3d 514, 518 (1st
Cir. 2005)("A statement of witness to a grand jury is material if the
statement is capable of influencing the grand jury as to any proper
matter pertaining to its inquiry or which might have influenced the
grand jury or impeded its inquiry. To be material, the statement need
not directly concern an element of the crime being investigated, nor
need it actually influence the jury"); United States v. Burke, 425 F.3d 400, 414 (7th Cir. 2005)("Even potential interference with a line of inquiry can establish materiality"); United States v. Blanton, 281 F.3d 771, 775(8th
Cir. 2002)("The statements need not be material to any particular
issue, but may be material to any proper matter of inquiry"); United States v. Plumley, 207 F.3d 1086, 1095-96 (8th
Cir. 2000)("Although it is true that this particular question did not
address the ultimate issue. . at the time ... it is not thereby rendered
immaterial" (citing cases in which a statement before the grand jury
was found to be material when a "truthful answer would have raised
questions about the role of others ... when [the] witness obscures [his]
whereabouts or involvement in offense ... [and] about peripheral
matters [that] can become material when considered in context"). |
| 444.
|
United States v. Strohm, 671 F.3d 1173, 1186 (10th Cir. 2011); United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005); United States v. Lee, 359 F.3d 412, 416 (6th Cir. 2004); United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003). |
| 445.
|
Brown v. United States, 245 F.2d 549, 555 (8th Cir. 1957), quoting, United States v. Icardi, 140 F.Supp. 383, 384-88 (D.D.C. 1956); but see United States v. Burke, 425 F.3d 400, 408 (7th
Cir. 2005)("We have not embraced this doctrine, however, and do not see
any reason to adopt it now")(internal citations omitted). |
| 446.
|
United States v. McKenna, 327 F.3d 830, 837 (9th
Cir. 2003)("Here, the government did not use its investigatory powers
to question McKenna before a grand jury. Rather, it merely questioned
McKenna in its role as a defendant during the pendency of a civil action
in which she was the plaintiff. The perjury trap doctrine is
inapplicable to McKenna's case for this reason"); United States v. Regan,
103 F.3d 1073, 1079 (2d Cir. 1997)("[w]e have noted that the existence
of a legitimate basis for an investigation and for particular questions
answered falsely precludes any application of the perjury trap
doctrine"); United States v. Chen, 933 F.2d 793, 797 (9th
Cir. 1991)("[w]hen testimony is elicited before a grand jury that is
attempting to obtain useful information in furtherance of its
investigation or conducting a legitimate investigation into crimes which
had in fact taken place within its jurisdiction, the perjury trap
doctrine is, by definition, inapplicable"), quoting, United States v. Devitt, 499 F.2d 135, 140 (7th Cir. 1974) and United States v. Chevoor, 526 F.2d 178, 185 (1st Cir. 1975). |
| 447.
|
18 U.S.C. 1623(c)("An indictment or information for
violation of this section alleging that, in any proceedings before or
ancillary to any court or grand jury of the United States, the defendant
under oath has knowingly made two or more declarations, which are
inconsistent to the degree that one of them is necessarily false, need
not specify which declaration is false if—(1) each declaration was
material to the point in question, and (2) each declaration was made
within the period of the statute of limitations for the offense charged
under this section. In any prosecution under this section, the falsity
of a declaration set forth in the indictment or information shall be
established sufficient for conviction by proof that the defendant while
under oath made irreconcilably contradictory declarations material to
the point in question in any proceeding before or ancillary to any court
or grand jury. It shall be a defense to an indictment or information
made pursuant to the first sentence of this subsection that the
defendant at the time he made each declaration believed the declaration
was true"); United States v. Dunn, 442 U.S. 100, 108 (1979)("By
relieving the government of the burden of proving which of two or more
inconsistent declarations was false, see §1623(c), Congress sought to
afford greater assurance that testimony obtained in grand jury and court
proceedings will aid the cause of truth"). |
| 448.
|
United States v. Jaramillo, 69 F.3d 388, 390 (9th Cir. 1995). |
| 449.
|
United States v. McAfee, 8 F.3d 1010, 1014-15 (5th
Cir. 1993)("The Government must show that the statements are so
irreconcilable that one of the statements is 'necessarily false.' We
find the Fourth Circuit's explanation of §1623(c) instructive and adopt
the standard set forth in United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987). In Flowers,
the court concluded that subsection 1623(c) 'requires a variance in
testimony that extends beyond mere vagueness, uncertainty, or
equivocality. Even though two declarations may differ from one another,
the §1623(c) standard is not met unless taking them into context, they
are so different that if one is true there is no way the other can also
be true.'" Id. at 1324; see also United States v. Porter, 994 F.2d 470 (8th Cir. 1993)). |
| 450.
|
Weiler v. United States, 323 U.S. 606, 607 (1945). |
| 451.
|
United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973); United States v. Diggs, 560 F.2d 266, 269 (7th Cir. 1977)(citing cases in accord). |
| 452.
|
18 U.S.C. 1623(e)("Proof beyond a reasonable doubt under
this section is sufficient for conviction. It shall not be necessary
that such proof be made by any particular number of witnesses or by
documentary or other type of evidence"). See also United States v. Kemp, 500 F.3d 257, 294 (3d Cir. 2007); United States v. Hasan, 609 F.3d 1121, 1139 (10th Cir. 2010). |
| 453.
|
18 U.S.C. 1623(d); cf., United States v. DeLeon, 603 F.3d 397, 404-405 (7th Cir. 2010). |
| 454.
|
United States v. Wiggan, 700 F.3d 1204, 1216 (9th
Cir. 2012)(internal citations and quotation marks omitted)
("Recantation requires a defendant to renounce and withdraw the prior
statement. And the defendant must unequivocally repudiate his prior
testimony to satisfy §1623(d). It is not enough if the defendant merely
attempted to explain his inconsistent statements, but never really
admitted to the facts in question"); United States v. Tobias, 863 F.2d 685, 689 (9th Cir. 1988)(unequivocal repudiation); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985)(implicit recantation is insufficient); United States v. Goguen, 723 F.2d 1012, 1017 (1st Cir. 1983)(outright retraction and repudiation). |
| 455.
|
United States v. Sherman, 150 F.3d 306, 313-18 (3d Cir. 1998); United States v. Fornaro, 894 F.2d 508, 510-11 (2d Cir. 1990); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. Denison, 663 F.2d 611, 615 (5th Cir. 1981); United States v. Moore, 613 F.2d 1029, 1043 (D.C.Cir. 1979); contra, United States v. Smith, 35 F.3d 344, 345-47 (8th Cir. 1994). |
| 456.
|
United States v. Moore, 613 F.2d 1029, 1043-44 (D.C. Cir. 1979); United States v. Srimgeour, 636 F.2d 1019, 1021 (5th Cir. 1980); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. Formaro, 894 F.2d 508, 510-11 (2d Cir. 1990). |
| 457.
|
United States v. Smith, 35 F.3d 344, 345 (8th Cir. 1994). |
| 458.
|
United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993). |
| 459.
|
United States v. Sherman, 150 F.3d 306, 312-13 (3d Cir. 1998); United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973). |
| 460.
|
18 U.S.C. 1621. |
| 461.
|
United States v. Dunnigan, 507 U.S. 87, 94 (1993); United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003); United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002); United States v. Nash, 175 F.3d 429, 438 (6th Cir. 1999); see also United States v. Dumeisi, 424 F.3d 566, 582 (7th
Cir. 2005)("the elements of perjury are (1) testimony under oath before
a competent tribunal, (2) in a case in which United States law
authorizes the administration of an oath, (3) false testimony, (4)
concerning a material matter, (5) with the willful intent to provide
false testimony"). |
| 462.
|
Bronston v. United States, 409 U.S. 352, 362
(1972) ("It may well be that petitioner's answers were not guileless but
were shrewdly calculated to evade. Nevertheless ... any special
problems arising from the literally true but unresponsive answer are to
be remedied through the questioner's acuity and not by a federal perjury
prosecution"); see also United States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003); United States v. Roberts, 308 F.3d 1147, 1152 (11th Cir. 2002); United States v. DeZarn, 157 F.3d 1042, 1047-48 (6th Cir. 1998). |
| 463.
|
Hammer v. United States, 271 U.S. 620, 626 (1926). |
| 464.
|
Weiler v. United States, 323 U.S. 606, 607 (1945); United States v. Stewart, 433 F.3d 273, 315 (2d Cir. 2006); United States v. Chaplin, 25 F.3d 1373, 1377 (7th Cir. 1994). |
| 465.
|
Weiler v. United States, 323 U.S. 606, 610 (1945); United States v. Stewart,
433 F.3d 273, 315 (2d Cir. 2006)(internal citations omitted)("The rule
is satisfied by the direct testimony of a second witness or by other
evidence of independent probative value, circumstantial or direct, which
is of a quality to assure that a guilty verdict is solidly founded. The
independent evidence must, by itself, be inconsistent with the
innocence of the defendant. However, the corroborative evidence need
not, it itself, be sufficient, if believed to support a conviction"). |
| 466.
|
United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002); United States v. Allen, 892 F.2d 66, 67 (10th Cir. 1989); United States v. Mareno Morales, 815 F.2d 725, 747 (1st Cir. 1987); see also United States v. Wallace, 597 F.3d 794, 801 (6th
Cir. 2010)("A false declaration satisfies the materiality requirement
if a truthful statement might have assisted or influenced the jury in
its investigation"). |
| 467.
|
United States v. Norris, 300 U.S. 564, 574 (1937)(emphasis added). |
| 468.
|
United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954). |
| 469.
|
United States v. Friedman, 854 F.2d 535, 560 (2d Cir. 1988); United States v. Mounts, 35 F.3d 1208, 1219 (7th Cir. 1994). |
| 470.
|
United States v. Norris, 300 U.S. 564, 574 (1934); United States v. McAfee, 8 F.3d 1010, 1017 (5th Cir. 1993). |
| 471.
|
United States v. Endo, 635 F.2d 321, 322 (4th Cir. 1980). |
| 472.
|
United States v. Hairston, 46 F.3d 361, 376 (4th
Cir. 1995)(if the underlying perjury conviction is reversed for
insufficient evidence, the subornation conviction must likewise be
reversed); see also United States v. Silverman, 745 F.2d 1386, 1394 (11th Cir. 1984). |
| 473.
|
Rosen v. N.L.R.B., 735 F.2d 564, 575 n.19 (4th
Cir. 1980)("it is true that a necessary predicate of the charge of
subornation of perjury is the suborner's belief that the testimony
sought is in fact false"); Petite v. United States, 262 F.2d 788, 794 (4th
Cir. 1959)("[i]t is essential to subornation of perjury that the
suborner should have known or believed or have had good reason to
believe that the testimony given would be false, that he should have
known or believed that the witness would testify willfully and
corruptly, and with knowledge of the falsity; and that he should have
knowingly and willfully induced or procured the witness to give such
false testimony")(Petite only refers to Section 1621 since it was decided prior to the enactment of Section 1623). |
| 474.
|
United States v. Miller, 161 F.3d 977, 982-84 (6th Cir. 1998). |
| 475.
|
18U.S.C. 1503 (emphasis added) ("Whoever ... endeavors
to influence, obstruct, or impede the due administration of justice ...
"); 1512 (b) (emphasis added) ("Whoever ... corruptly persuades another
person, or attempts to do so ... with intent to influence ... the
testimony of any person in an official proceeding ... "). |
| 476.
|
There are scores of more limited false statement statutes
that relate to particular agencies or activities and include 8 U.S.C.
1160(b)(7)(A) (applications for immigration status); 15 U.S.C. 158
(China Trade Act corporate personnel); 15 U.S.C. 645 (Small Business
Administration); 15 U.S.C. 714m (Commodity Credit Corporation); 16
U.S.C. 831t (TVA); 18 U.S.C. 152 ( bankruptcy); 18 U.S.C. 287 (false or
fraudulent claims against the United States); 18 U.S.C. 288 (postal
losses); 18 U.S.C. 289 (pensions); 18 U.S.C. 541 (entry of goods falsely
classified); 18 U.S.C. 542 (entry of goods by means of false
statements); 18 U.S.C. 550 (refund of duties); 18 U.S.C. 1003
(fraudulent claims against the United States); 18 U.S.C. 1007 (FDIC
transactions); 18 U.S.C. 1011 (federal land bank mortgage transactions);
18 U.S.C. 1014 (loan or credit applications in which the United States
has an interest); 18 U.S.C. 1015 (naturalization, citizenship or alien
registry); 18 U.S.C. 1019 (false certification by consular officer); 18
U.S.C. 1020 (highway projects); 18 U.S.C. 1022 (false certification
concerning material for the military); 18 U.S.C. 1027 (ERISA); 18 U.S.C.
1542 (passport applications); 18 U.S.C. 1546 (fraud in connection with
visas, permits and other documents); 22 U.S.C. 1980 (compensation for
loss of commercial fishing vessel or gear); 22 U.S.C. 4221 (American
diplomatic personnel); 22 U.S.C. 4222 (presentation of forged documents
to United States foreign service personnel); 42 U.S.C. 408 (old age
claims); 42 U.S.C. 1320a-7b (Medicare). |
| 477.
|
18 U.S.C. 1001(a). |
| 478.
|
United States v. Castro, 704 F.3d 125, 139 (3d
Cir. 2013)("To establish a violation of §1001, the government is
required to prove each of the following five elements: (1) that the
accused made a statement or representation; (2) that the statement or
representation was false; (3) that the false statement was made
knowingly and willfully; (4) that the statement or representation was
material; and (5) that the statement or representation was made in a
matter within the jurisdiction of the federal government"); United States v. Hamilton, 699 F.3d 356, 362 (4th Cir. 2012); United States v. Abrahem, 678 F.3d 370, 373 (5th Cir. 2012); United States v. Geisen, 612 F.3d 471, 489 (6th Cir. 2010); United States v. Dinga, 609 F.3d 904, 907 (7th Cir. 2010). |
| 479.
|
United States v. White Eagle, 721 F.3d 1108, 1116 (9th
Cir. 2013)("[A] conviction under 18 U.S.C. §1001(a)(2) requires that
(1) the defendant had a duty to disclose material information, (2) the
defendant falsified, concealed, or covered up such a fact by trick,
scheme, or fraud, (3) the falsified, concealed, or covered up fact was
material, (4) the falsification and/or concealment was knowing and
willful, and (5) the material fact was within the jurisdiction of the
Executive Branch"); United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006). |
| 480.
|
United States v. McGauley, 279 F.3d 62, 69 (1st
Cir. 2002)("To establish a violation of 18 U.S.C. 1001, the government
must prove that the defendant knowingly and willfully made or used a
false writing or document, in relation to a matter with the jurisdiction
of the United States government with knowledge of its falsity"); United States v. Blankenship, 382 F.3d 1110, 1131-132 (11th Cir. 2004). |
| 481.
|
United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th
Cir. 2010)("To sustain a conviction for violation of 18 U.S.C. section
1001, the government must prove (1) that a statement was made; (2) that
it was false; (3) that it was material; (4) that it was made with
specific intent; and (5) that it was within the jurisdiction of an
agency of the United States.... Falsity under section 1001 can be
established by a false representation or by concealment of a material
fact"); United States v. White, 492 F.3d 380, 396 (6th
Cir. 2007)("Sufficient evidence also supports Defendant White's
conviction for use of a false document. Title 18 U.S.C. §1001(a)(3)
prohibits 'knowingly and
willfully mak[ing] or us[ing] any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry.' 18 U.S.C. §1003(a)(3). Here, the government must
prove (1) the defendant made a statement; (2) the statement is false or
fraudulent; (3) the statement is material; (4) the defendant made the
statement knowingly and willfully; and (5) the statement pertained to an
activity within the jurisdiction of a federal agency"). |
| 482.
|
United States v. Vreeland, 684 F.3d 653, 662 (6th
Cir. 2012)("This judicial function exception has three requirements:
'[The defendant] must show that (1) he was a party to a judicial
proceeding, (2) his statements were submitted to a judge or magistrate,
and (3) his statements were made in that proceeding'"), quoting, United States v. McNeil, 362 F.3d 570, 572 (9th Cir. 2004). |
| 483.
|
United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir. 2007); United States v. Pickett, 353 F.3d 62, 66-69 (D.C. Cir. 2004). |
| 484.
|
United States v. Rodgers, 466 U.S. 475, 479 (1984); United States v. King, 660 F.3d 1071, 1081 (9th Cir. 2011); United States v. Jackson, 608 F.3d 193, 197 (4th Cir. 2010); United States v. Atalig, 502 F.3d 1063, 1068 (9th Cir. 2007); United States v. Blankenship, 382 F.3d 1110, 1136 (11th Cir. 2004); United States v. White, 270 F.3d 356, 363 (6th Cir. 2001). |
| 485.
|
United States v. Ford, 639 F.3d 718, 720 (6th
Cir. 2011)("Jurisdiction may exist when false statements were made to
state or local government agencies receiving federal support or subject
to federal regulation"); United States v. Starnes, 583 F.3d
196, 208 (3d Cir. 2009)("Indeed, it is enough that the statement or
representation pertain to a matter in which the executive branch has the
power to exercise authority.... HUD, an agency within the executive
branch, provided the funding for the Donoe project to VIHA and had the
power to exercise authority over the project, had it chosen to do so"); United States v. Taylor, 582 F.3d 558, 563(5th
Cir. 2009)("The term 'jurisdiction' merely incorporates Congress'[s]
intent that the statute apply whenever false statements would result in
the perversion of the authorized functions of a federal department or
agency"); United States v. White, 270 F.3d 356, 363 (6th
Cir. 2001)("We have in the past looked to whether the entity to which
the statements were made received federal support and/or was subject to
federal regulation"); United States v. Davis, 8 F.3d 923, 929
(2d Cir. 1993)("In situations in which a federal agency is overseeing a
state agency, it is the mere existence of the federal agency's
supervisory authority that is important to determining jurisdiction"), contra, United States v. Blankenship, 382 F.3d 1110, 1139, 1141 (11th Cir. 2004)(emphasis in the original) ("The clear, indisputable holding of Lowe
is that a misrepresentation made to a private company concerning a
project that is the subject of a contract between that company and the
federal government does not constitute a misrepresentation about a matter within the jurisdiction of the federal government.... Because neither Lowe not its central holding has ever been overruled ... it remains good law"). |
| 486.
|
United States v. McNeil, 362 F.3d 570, 573 (9th
Cir. 2004)(but observing that "[s]ubmitting a false CJA-23 form may
subject a defendant to criminal liability under other statutes, for
example, under 18 U.S.C. 1621, the general statute on perjury, or 18
U.S.C. 1623, which punishes the making of a false material declaration
in any proceeding, before, or ancillary to, any court"). |
| 487.
|
United States v. Horvath, 492 F.3d 1075, 1078-1081 (9th Cir. 2007). |
| 488.
|
United States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001). |
| 489.
|
United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006). |
| 490.
|
United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006); United States v. Starnes, 583 F.3d 196, 212 n. 8 (3d Cir. 2009). |
| 491.
|
United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010)("For purposes of the statute, the word 'false' requires an intent to deceive or mislead"); United States v. Starnes,
583 F.3d 196, 210 (3d Cir. 2009)("In general, 'knowingly' requires the
government to prove that a criminal defendant had 'knowledge of the
facts that constitute the offense ... willfully ... usually requires the
government to prove that the defendant acted not merely voluntarily,
but with a bad purpose, that is, with knowledge that his conduct was, in
some general sense, unlawful"). |
| 492.
|
United States v. Wu, 711 F.3d 1, 28 (1st Cir. 2013); see also United States v. Hsia, 176 F.3d 716, 721-22 (D.C. Cir. 1999); United States v. Hoover, 175 F.3d 564, 571 (7th Cir. 1999). |
| 493.
|
United States v. King, 735 F.3d 1098,1107-108 (9th Cir. 2013); United States v. Mehanna, 735 F.3d 32, 54 (1st Cir. 2013); United States v. Gordon, 710 F.3d 1124, 1144-145 (10th Cir. 2013); United States v. Moore, 708 F.3d 639, 649 (2013); United States v. Hamilton, 699 F.3d 356, 362 (4th Cir. 2012); United States v. Abrahem, 678 F.3d 370, 374-76 (5th Cir. 2012). |
| 494.
|
United States v. Mehanna, 735 F.3d at 54 ("Where a
defendant's statements are intended to misdirect government
investigators, they may satisfy the materiality requirement of [§]1001
even if they stand no chance of accomplishing their objective. This
principle makes eminently good sense: it would stand reason on its head
to excuse a defendant's deliberate prevarication merely because his
interrogators were a step ahead of him"); United States v. King, 735 F.3d at 1108; ); United States v. Moore, 708 F.3d at 649; United States v. Hamilton, 699 F.3d at 362; United States v. McBane, 433 F.3d 344, 350 (3d Cir. 2005), quoting, United States v. Gaudin, 515 U.S. 506, 512 (1995). |
| 495.
|
United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003)("The principle articulated in Bronston
holds true for convictions under Section 1001 ... We cannot uphold a
conviction ... where the alleged statement forming the basis of a
violation of Section 1001 is true on its face"); see also United States v. Mehanna, 735 F.3d 32, 54 (1st Cir. 2013); United States v. Castro, 704 F.3d 125, 139 (3d Cir. 2013). |
| 496.
|
United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003); United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003); cf., United States v. Martin, 369 F.3d 1046, 1060 (8th Cir. 2004); United States v. Hatch, 434 U.S. 1, 4-5 (1st Cir. 2006). |
| 497.
|
United States v. Dooley, 578 F.3d 582, 592 (7th Cir. 2009); United States v. Stewart, 433 F.3d 273, 318 (2d Cir. 2006), citing, United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir. 2001); United States v. Meuli, 8 F.3d 1481, 1486-487 (10th Cir. 1993); and United States v. Fern, 696 F.2d 1269, 1275 (11th Cir. 1983). |
| 498.
|
United States v. Safavian, 528 F.3d 957, 964
(D.C. Cir. 2008)("As Safavian argues and as the government agrees, there
must be a legal duty in order for there to be a concealment offense in
violation of §1001(a)(1)"); United States v. Stewart, 433 F.3d
273, 318-19 (2d Cir. 2006)("Defendant's legal duty [as a broker] to be
truthful under Section 1001 included a duty to disclose the information
regarding the circumstances of Stewart's December 27th
trade.... Trial testimony indicated that the SEC had specifically
inquired about [his] knowledge of Stewart's trades. As a result, it was
plausible for the jury to conclude that the SEC's questioning had
triggered [his] duty to disclose and that ample evidence existed that
his concealment was material to the investigation "); United States v. Moore, 446 F.3d 671, 678-79 (7th Cir. 2006)(regulatory obligation); United States v. Gibson, 409 F.3d 325, 333 (6th
Cir. 2005) ("Conviction on a 18 U.S.C. 1001 concealment charge requires
a showing that the 'defendant had a legal duty to disclose the facts at
the time he was alleged to have concealed them'"), quoting, United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994). |
| 499.
|
"(1) Whoever, being an officer of a financial institution,
with the intent to obstruct a judicial proceeding, directly or
indirectly notifies any other person about the existence or contents of a
subpoena for records of that financial institution, or information that
has been furnished to the grand jury in response to that subpoena,
shall be fined under this title or imprisoned not more than five years,
or both.
"(2) Whoever, being an officer of a financial institution,
directly or indirectly notifies—(A) a customer of that financial
institution whose records are sought by a grand jury subpoena; or (B)
any other person named in that subpoena—about the existence or contents
of that subpoena or information that has been furnished to the grand
jury in response to that subpoena, shall be fined under this title or
imprisoned not more than one year, or both.
"(3) As used in this section—(A) the term 'an officer of a
financial institution' means an officer, director, partner, employee,
agent, or attorney of or for a financial institution; and(B) the term
'subpoena for records' means a Federal grand jury subpoena or a
Department of Justice subpoena (issued under section 3486 of title 18),
for customer records that has been served relating to a violation of, or
a conspiracy to violate—(i) section 215, 656, 657, 1005, 1006, 1007,
1014, 1344, 1956, 1957, or chapter 53 of title 31; or (ii) Section 1341
or 1343 affecting a financial institution," 18 U.S.C. 1510(b). |
| 500.
|
"(1) Whoever—(A) acting as, or being, an officer,
director, agent or employee of a person engaged in the business of
insurance whose activities affect interstate commerce, or (B) is engaged
in the business of insurance whose activities affect interstate
commerce or is involved (other than as an insured or beneficiary under a
policy of insurance) in a transaction relating to the conduct of
affairs of such a business—with intent to obstruct a judicial
proceeding, directly or indirectly notifies any other person about the
existence or contents of a subpoena for records of that person engaged
in such business or information that has been furnished to a Federal
grand jury in response to that subpoena, shall be fined as provided by
this title or imprisoned not more than five years, or both.
"(2) As used in paragraph (1), the term 'subpoena for
records' means a Federal grand jury subpoena for records that has been
served relating to a violation of, or a conspiracy to violate, Section
1033 of this title," 18 U.S.C. 1510(d). |
| 501.
|
"(1) Except as otherwise specifically provided in this
chapter any person who ... (e) (i) intentionally discloses, or endeavors
to disclose, to any other person the contents of any wire, oral, or
electronic communication, intercepted by means authorized by subsections
2511(2)(a)(ii), 2511(2)(b) to (c), 2511(2)(e), 2516, and 2518 of this
chapter, (ii) knowing or having reason to know that the information was
obtained through the interception of such a communication in connection
with a criminal investigation, (iii) having obtained or received the
information in connection with a criminal investigation, and (iv) with
intent to improperly obstruct, impede, or interfere with a duly
authorized criminal investigation ... (4)(a) ... shall be fined under
this title or imprisoned not more than five years, or both," 18 U.S.C.
2511(1)(e), (4)(a). |
| 502.
|
"(c) Notice of search or execution of seizure warrant or
warrant of arrest in rem.– Whoever, having knowledge that any person
authorized to make searches and seizures, or to execute a seizure
warrant or warrant of arrest in rem, in order to prevent the authorized
seizing or securing of any person or property, gives notice or attempts
to give notice in advance of the search, seizure, or execution of a
seizure warrant or warrant of arrest in rem, to any person shall be
fined under this title or imprisoned not more than five years, or both.
"(d) Notice of certain electronic surveillance.– Whoever,
having knowledge that a Federal investigative or law enforcement officer
has been authorized or has applied for authorization under chapter 119
to intercept a wire, oral, or electronic communication, in order to
obstruct, impede, or prevent such interception, gives notice or attempts
to give notice of the possible interception to any person shall be
fined under this title or imprisoned not more than five years, or both.
"(e) Foreign intelligence surveillance.– Whoever, having
knowledge that a Federal officer has been authorized or has applied for
authorization to conduct electronic surveillance under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.), in
order to obstruct, impede, or prevent such activity, gives notice or
attempts to give notice of the possible activity to any person shall be
fined under this title or imprisoned not more than five years, or both,"
18 U.S.C. 2232(c), (d), (e). |
| 503.
|
Id. |
| 504.
|
"(a) It shall be unlawful for two or more persons to
conspire to obstruct the enforcement of the criminal laws of a State or
political subdivision thereof, with the intent to facilitate an illegal
gambling business if—(1) one or more of such persons does any act to
effect the object of such a conspiracy; (2) one or more of such persons
is an official or employee, elected, appointed, or otherwise, of such
State or political subdivision; and (3) one or more of such persons
conducts, finances, manages, supervises, directs, or owns all or part of
an illegal gambling business. (b) As used in this section—(1) 'illegal
gambling business' means a gambling business which– (i) is a violation
of the law of a State or political subdivision in which it is conducted;
(ii) involves five or more persons who conduct, finance, manage,
supervise, direct, or own all or part of such business; and (iii) has
been or remains in substantially continuous operation for a period in
excess of thirty days or has a gross revenue of $2,000 in any single
day. (2) 'gambling' includes but is not limited to pool-selling,
bookmaking, maintaining slot machines, roulette wheels, or dice tables,
and conducting lotteries, policy, bolita or numbers games, or selling
chances therein. (3) 'State' means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and any territory
or possession of the United States. . .. (d) Whoever violates this
section shall be punished by a fine under this title or imprisonment for
not more than five years, or both," 18 U.S.C. 1511(a), (b), (d). |
| 505.
|
18 U.S.C. 1516("(a) Whoever, with intent to deceive or
defraud the United States, endeavors to influence, obstruct, or impede a
Federal auditor in the performance of official duties relating to a
person, entity, or program receiving in excess of $100,000, directly or
indirectly, from the United States in any 1 year period under a contract
or subcontract, grant, or cooperative agreement, or relating to any
property that is security for a mortgage note that is insured,
guaranteed, acquired, or held by the Secretary of Housing and Urban
Development pursuant to any Act administered by the Secretary, or
relating to any property that is security for a loan that is made or
guaranteed under title V of the Housing Act of 1949, shall be fined
under this title, or imprisoned not more than 5 years, or both.
"(b) For purposes of this section– (1) the term "Federal
auditor" means any person employed on a full- or part-time or
contractual basis to perform an audit or a quality assurance inspection
for or on behalf of the United States; and (2) the term "in any 1 year
period" has the meaning given to the term "in any one-year period" in
section 666"). |
| 506.
|
18 U.S.C. 1517 ("Whoever corruptly obstructs or attempts
to obstruct any examination of a financial institution by an agency of
the United States with jurisdiction to conduct an examination of such
financial institution shall be fined under this title, imprisoned not
more than 5 years, or both"). |
| 507.
|
18 U.S.C. 1518("(a) Whoever willfully prevents, obstructs,
misleads, delays or attempts to prevent, obstruct, mislead, or delay
the communication of information or records relating to a violation of a
Federal health care offense to a criminal investigator shall be fined
under this title or imprisoned not more than 5 years, or both. (b) As
used in this section the term 'criminal investigator' means any
individual duly authorized by a department, agency, or armed force of
the United States to conduct or engage in investigations for
prosecutions for violations of health care offenses"). |
| 508.
|
18 U.S.C. 118 ("Any person who knowingly and willfully
obstructs, resists, or interferes with a Federal law enforcement agent
engaged, within the United States, in the performance of the protective
functions authorized under section 37 of the State Department Basic
Authorities Act of 1956 (232 U.S.C. 2709) or Section 103 of the
Diplomatic Security Act (22 U.S.C. 4802) shall be fined under this
title, imprisoned not more than 1 year, or both"). |
| 509.
|
18 U.S.C. 1521 ("Whoever files, attempts to file, or
conspires to file, in any public record or in any private record which
is generally available to the public, any false lien or encumbrance
against the real or personal property of an individual described in
section 1114, on account of the performance of official duties by that
individual, knowing or having reason to know that such lien or
encumbrance is false or contains any materially false, fictitious, or
fraudulent statement or representation, shall be fined under this title
or imprisoned for not more than 10 years, or both"). |
| 510.
|
18 U.S.C. 1516, 1517, 1518. Each offense also carries with it liability for a criminal fine of not more than $250,000, id. and 18 U.S.C. 3571. |
| 511.
|
18 U.S.C. 118, 1521. The maximum fine for an offense under
§118 is $100,000; the maximum for an offense under §1521 is $250,000, id. and 18 U.S.C. 3571. |
| 512.
|
18 U.S.C. 1590(b)(trafficking with respect to peonage,
slavery, involuntary servitude, or forced labor), for example, provides,
"Whoever obstructs, attempts to obstruct, or in any way interferes with
or prevents the enforcement of this section, shall be subject to the
penalties under subsection (a)." Comparable provisions appear in 18
U.S.C. 1581(peonage), 1583(enticement into slavery), 1584(sale into
involuntary servitude), 1591(sex trafficking of children or by force,
fraud, or coercion), 1952(unlawful conduct with respect to documents in
furtherance of trafficking, peonage, slavery, involuntary servitude, or
forced labor), and 1957 (unlawful conduct with respect to immigration
documents). |
| 513.
|
Punishment for the obstruction component of 18 U.S.C.
1591, however, is imprisonment for not more than 20 years, although the
maximum penalty for the underlying offense is imprisonment for life. |
| 514.
|
18 U.S.C. 1504 ("Whoever attempts to influence the action
or decision of any grand or petit juror of any court of the United
States upon any issue or matter pending before such juror, or before the
jury of which he is a member, or pertaining to his duties, by writing
or sending to him any written communication, in relation to such issue
or matter, shall be fined under this title or imprisoned not more than
six months, or both. Nothing in this section shall be construed to
prohibit the communication of a request to appear before the grand
jury"). |
| 515.
|
In United States v. Burkowski, 435 F.2d 1094, 1104 (7th
Cir. 1970), a juror—convicted of contempt for reading outside material
and engaging in outside discussion on issues before the jury during the
course of the trial—argued unsuccessfully that he should have been tried
under the less severe provisions of 18 U.S.C. 1504. |
| 516.
|
In re New Haven Grand Jury, 604 F.Supp. 453, 457 (D.Conn. 1985); United States v. Smyth, 104 F.Supp. 283, 299 (N.D.Cal. 1952). |
| 517.
|
United States v. Heicklen, 858 F.Supp.2d 256, 272 (S.D.N.Y. 2012). |
| 518.
|
Id. at 275 (emphasis in the original). |
| 519.
|
If the defendant is convicted of an obstruction of justice
offense, the enhancement only applies "if a significant further
obstruction occurred during the investigation, prosecution, or
sentencing of the obstruction offense itself (e.g., if the defendant
threatened a witness during the course of the prosecution for the
obstruction offense)," U.S.S.G. §3C1.1, cmt., app. n. 7. |
| 520.
|
Gall v. United States, 552 U.S. 38, 49-51
(2007)("[A] district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.... [A]fter giving
both parties an opportunity to argue for whatever sentence they deem
appropriate, the district judge should then consider all of the [18
U.S.C] §3553(a) factors to determine whether they support the sentence
requested by a party.. . . If he decides that an outside-Guidelines
sentence is warranted, he must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the
degree of the variance. We find it uncontroversial that a major
departure should be supported by a more significant justification than a
minor one. After settling on the appropriate sentence, he must
adequately explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing....
Regardless of whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the sentence under an
abuse-of-discretion standard. It must first ensure that the district
court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the §3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any
deviation from the Guidelines range. Assuming that the district court's
sentencing decision is procedurally sound, the appellate court should
then consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard. When conducting this review, the
court will, of course, take into account the totality of the
circumstances, including the extent of any variance from the Guidelines
range. If the sentence is within the Guidelines range, the appellate
court may, but is not required to, apply a presumption of
reasonableness. But if the sentence is outside the Guidelines range, the
court may not apply a presumption of unreasonableness. It may consider
the extent of the deviation, but must give due deference to the district
court's decision that the §3553(a) factors, on a whole, justify the
extent of the variance"). |
| 521.
|
U.S.S.G. ch. 5 Sentencing Table. |
| 522.
|
Id. |
| 523.
|
Id. |
| 524.
|
U.S.S.G. §3C1.1, cmt., app. n. 2. |
| 525.
|
Id. |
| 526.
|
United States v. Dunnigan, 507 U.S. 87, 98 (1993); see also United States v. Tuma, 738 F.3d 681, 694 (5th
Cir. 2013)("[A] criminal defendant cannot argue that increasing his
sentence based on his perjury interfered with his right to testify
because a defendant's right to testify does not include a right to
commit perjury. Tuma acknowledges this precedent, briefly argues it was
wrongly decided, and writes to preserve the issue. Dunnigan forecloses Tuma's argument"). |
| 527.
|
U.S.S.G. §3C1.1, cmt., app. n. 4(a). |
| 528.
|
United States v. Dinga, 609 F.3d 904, 909 (7th Cir. 2010); United States v. Watkins, 691 F.3d 841, 853-54 (6th Cir. 2012). |
| 529.
|
United States v. Quintero, 618 F.3d 746, 752-53 (7th Cir. 2010); see also United States v. Quirion, 714 F.3d 77, 80-81 (1st Cir. 2013)(false statements to protect a girlfriend). |
| 530.
|
United States v. Bedolla-Zavala, 611 F.3d 392, 395 (7th Cir. 2010). |
| 531.
|
United States v. Alvarado, 615 F.3d 916, 922-23 (8th Cir. 2010); United States v. Greig, 717 F.3d 212, 220-21 (1st Cir. 2013). |
| 532.
|
United States v. Jones, 612 F.3d 1040, 1046-47 (8th Cir. 2010). |
| 533.
|
United States v. Alexander, 602 F.3d 639, 642-43 & n.4 (5th
Cir. 2010)("The First, Second, Third, Forth, Sixth, Eighth, Ninth,
Tenth and Eleventh Circuits have all held that obstruction of a state
investigation based on the same facts as the eventual federal conviction
qualifies for enhancement under U.S.S.G. §3C1.1.... Only the Seventh
Circuit has held the obstruction of a state proceeding does not qualify
... "). |
| 534.
|
United States v. Riney, 742 F.3d 785, 790 (7th
Cir. 2014)("To apply the enhancement based on perjury, the district
court should make a finding as to all the factual predicates necessary
for a finding of perjury: false testimony, materiality, and willful
intent"), citing United States v. Dunnigan, 507 U.S. 87, 95 (1993); United States v. Simpson, 741 F.3d 539, 555 (5th Cir. 2014); United States v. Kahre, 737 F.3d 554, 582-83 (9th Cir. 2013); but see United States v. Parker, 716 F.3d 999, 1012 (7th
Cir. 2013)(enhancement inappropriate where neither the court nor
appellate counsel could identify a willfully false statement and the
trial court had noted that "Ms. Parker may even believe herself that she
didn't negotiate these checks"); United States v. Macias-Farias, 706 F.3d 775, 782 (6th Cir. 2013)(enhancement inappropriate where the sentencing court failed to identify the statements it found perjurious). |
| 535.
|
U.S.S.G. §3C1.1, cmt., app. n. 6; United States v. Greig, 717 F.3d 212, 222 (1st Cir. 2013); United States v. McKinney, 686 F.3d 432, 437-38 (7th
Cir. 2012); see also U.S.S.G. §3C1.1, cmt., app. n. 5(C)("Examples of
Conduct Ordinarily Not Covered.—... The following is a non-exhaustive
list of examples of the types of conduct to which this application note
applies ... (C) providing incomplete or misleading information,
amounting to a material falsehood, in respect to a presentencing
investigation"); United States v. Perez-Solis, 709 F.3d 453, 470 (5th
Cir. 2013)("The sentencing court need not expressly find that the false
testimony concerned a material matter; it is enough that materiality is
obvious"). |
| 536.
|
U.S.S.G. §3C1.1, cmt., app. n. 5(a); United States v. Williams, 709 F.3d 1183, 1186 (6th
Cir. 2013)("Thus, for the district court to determine that Williams'
alias was 'material,' the court first had to identify the issues that
the magistrate judge decided and then determine whether Williams's alias
had any tendency to influence the magistrate judge's decision on those
issues. .. . . The record thus provides no basis to find that Williams's
false identity had any tendency to affect the court's decision whether
to appoint counsel for Williams. The second issue that the magistrate
judge determined was that DEA agents had probable cause to arrest
Williams for possessing oxycodone without intent to distribute ... That
Williams identified himself as Fordham, therefore, made no difference to
this determination either"). |
| 537.
|
U.S.S.G. §3C1.1, cmt., app. n. 4(A), (K)("Examples of
Covered Conduct.—The following is a non-exhaustive list of examples of
the types of conduct to which this adjustment applies: (A) threatening,
intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do so; ...
(K) threatening the victim of the offense in an attempt to prevent the
victim from reporting the conduct constituting the offense of
conviction"); United States v. Greco, 734 F.3d 441, 448-49 (6th Cir. 2013)(enhancement appropriate where the defendant encouraged the minor witness to lie to authorities); United States v. Hutterer, 706 F.3d 921, 925 (11th Cir. 2013)(enhancement appropriate for threatening potential witness); United States v. McKeighan, 685 F.3d 956, 975-76 (10th Cir. 2012)(induced a witness to create false evidence). |
| 538.
|
U.S.S.G. §3C1.1, cmt., app. n. 4(C)(" Examples of Covered
Conduct.—The following is a non-exhaustive list of examples of the
types of conduct to which this adjustment applies: ... (C) producing or
attempting to produce a false, altered, or counterfeit document or
record during an official investigation or judicial proceeding"); cf., United States v. Batchu, 724 F.3d 1, 27 (1st Cir. 2013). |
| 539.
|
U.S.S.G. §3C1.1, cmt., app. n. 4(D)("Examples of Covered
Conduct.—The following is a non-exhaustive list of examples of the types
of conduct to which this adjustment applies: ... (D) destroying or
concealing or directing or procuring another person to destroy or
conceal evidence that is material to an official investigation or
judicial proceeding (e.g., shredding a document or destroying ledgers
upon learning that an official investigation has commenced or is about
to commence), or attempting to do so; however, if such conduct occurred
contemporaneously with arrest (e.g., attempting to swallow or throw away
a controlled substance), it shall not, standing alone, be sufficient to
warrant an adjustment for obstruction unless it results in a material
hindrance to the official investigation or prosecution of the instant
offense or the sentencing of the offender"); United States v. Greco, 734 F.3d 441, 448-49 (6th Cir. 2013)(altering and concealing evidentiary documents); United States v. King, 604 F.3d 125, 141 (3d Cir. 2010)(destruction of evidence-containing computer hard drives). |
| 540.
|
U.S.S.G. §3C1.1, cmt., app. n. 4(E)("Examples of Covered
Conduct.—The following is a non-exhaustive list of examples of the types
of conduct to which this adjustment applies: ... (E) escaping or
attempting to escape from custody before trial or sentencing; or
willfully failing to appear, as ordered, for a judicial proceeding");
but see U.S.S.G. §3C1.1, cmt., app. n. 5(D)("Examples of Conduct Not
Covered.... The following is a non-exhaustive list of examples of the
types of conduct to which this adjustment applies: ... (D) avoiding or
fleeing from arrest"); United States v. Nduribe, 703 F.3d 1049, 1051-53 (7th Cir. 2013)(discussing cases endeavoring to distinguish the two statements in the commentary); United States v. Manning, 704 F.3d 584, 587 (9th
Cir. 2012)("In addition to making false statements to [Officer]
Stranieri, Manning both fled to Mexico while on pretrial release and
failed to appear at his revocation hearing, each of which qualifies as
obstruction of justice"). |
| 541.
|
U.S.S.G. §3C1.1, cmt., app. n. 4(I)("Examples of Covered
Conduct.—The following is a non-exhaustive list of examples of the types
of conduct to which this adjustment applies: ... (E) other conduct
prohibited by obstruction of justice provisions under Title 18, United
States Code (e.g., 18 U.S.C. §§1510, 1511"); see United States v. Cheek, 740 F.3d 440, 453-54 (7th Cir. 2014)(enhancement appropriate for efforts to influence a witness' testimony through her daughter); United States v. Aldawsari, 740 F.3d 1015, 1021 (5th Cir. 2014)(enhancement appropriate where the defendant feigned mental illness to avoid trial); United States v. Dufresne, 698 F.3d 663, 665-66 (8th Cir. 2012)(concealing forfeitable assets); United States v. Wahlstrom, 588 F.3d 538, 543-44 (8th Cir. 2009)(enhancement appropriate for efforts to arrange the murder of the prosecutor's wife). |
| 542.
|
United States v. Greco, 734 F.3d 441, 448-49 (6th Cir. 2013)(quoting U.S.S.G. §3C1.1)(prior to the investigation); United States v. Galaviz, 687 F.3d 1042, 1043 (8th Cir. 2012)(unrelated to the crime of conviction); United States v. Williams, 693 F.3d 1067, 1076 (2012)(same). |
Andrew Weissmann is a veteran government prosecutor known for his controversial role on
the Enron task force and for going after mob figures in New York. He’s
known for his abilities at flipping lower-level defendants on bigger
targets (and even going after family members), but Weissmann is
controversial in other circles as some consider him an overreaching
prosecutor who is sometimes overturned by higher courts.He’s integrally involved in the Mueller team. On October 27, 2017, CNN reported,
“top lawyers who are helping to lead the Mueller probe, including
veteran prosecutor Andrew Weissmann, were seen entering the court room
at the DC federal court where the grand jury meets to hear testimony in
the Russia investigation.”Weissmann is a Barack Obama and
Democratic campaign donor, according to federal records. “Weissmann, who
led the Enron investigation, previously gave $2,300 to Obama’s first
presidential campaign in 2008 and $2,000 to the Democratic National
Committee in 2006, the same year Democrats won control of Congress. FEC
records do not show any donations by Weissman in the 2016 election
cycle,” CNN confirmed.
