Obstruction of Justice- 18 USC 1503 and 1505 PDF

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Summary

Obstruction of Justice - 18 USC §§ 1503-1505;
Omnibus Clause of 18 U.S.C. §1503
Cases:
United States v. Aguilar
United States v. Bonds
United States v. Cueto
...

Description

Obstruction of Justice - 18 USC §§ 1503-1505; Omnibus Clause of 18 U.S.C. §1503 Cases: United States v. Aguilar United States v. Bonds United States v. Cueto

Obstruction Of Justice    

Relatively easy to prove (in comparison to some sophisticated white collar crimes) Easier for the government to prove the destruction of documents, lying to investigators, or lying to a grand jury, then to present fraudulent complicated financial transactions §1503 white collar crime generic obstruction statute protects against the due administration of justice §1505

A. The “Omnibus” Clause of 18 U.S.C. §1503   

Purpose  protect the procedures of the criminal system and to achieve justice (goal of the criminal system) Specifically targets conduct that interferes with the duties of a juror or court office. “omnibus” clause: o “[w]hoever…corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct or impede, the due administration of justice, shall be punished…” o Catch all provision, generally prohibiting conduct that interferes with the due administration of justice.

United States v. Aguilar- SCT 1995 Procedural History:

Issue: Facts:

Jury convicted US District Judge Robert Aguilar of 1 count of illegally disclosing a wiretap in violation of 18 USC §2232(c) and one count of endeavoring to obstruct the due administration of justice in violation of §1503 SCT granted certiorari Conflict among the Federal Circuits over whether §1503 punishes false statements made to potential grand jury witnesses Many facts remain disputed by both parties Agreed upon fact a motion for post conviction relief filed by Tham represents the starting point from which events bearing on this case started. Tham  convicted of embezzling funds from the local affiliate of International Brotherhood of Teamsters  1987 he filed a motion to have his convicted set aside, motion assigned to  Judge Stanley Weigel. Tham  trying to get better odds of his petition being granted, asked Edward Solomon and Abe Chapman to assist him by capitalizing on their acquaintance with another judge in the Norther District of California  respondent Aguilar

Aguilar  knew Chapman as a distant relation by marriage  knew Solomon from law school Solomon and Chapman met with Aguilar to discuss Tham’s case Aguilar  spoke with Judge Weigel about the matter FBI identified Tham as suspect in an investigation of labor racketeering April 1987, FBI got authorization to install wiretap on Tham’s business phones, Chapman appeared on application as a potential interceptee (judge Peckham authorized the tap)  during course of racketeering investigation, FBI learned of meetings between Chapman and Aguilar FBI informed Judge Peckham who advised Aguilar in August 1987 that Chapman might be connected with criminal elements because Chapman’s name had appeared on wiretap authorization 5 months later Aguilar noticed man watching his home during a visit by Chapman  Aguilar told Nephew this fact and conveyed the message that Chapman’s phone was being wiretapped (with an intent that his nephew relay the info to Chapman 2 months after disclosure to nephew, grand jury began investigating an alleged conspiracy to influence the outcome of Tham’s habeas corpus case  2 FBI went to question Aguilar  Aguilar lied about his participation in the Tham case and his knowledge of the wiretap.  Grand Jury convicted Aguilar of one count of endeavoring to obstruct the due administration of justice under §1503 Black Letter Law :

Prior case law for §1503

§1503 structured as follows: 1. prohibits persons from endeavoring to influence, intimidate or impede grand or petit jurors or court officers in the discharge of their duties 2. Prohibits injuring grand or petit jurors in their person or property because of any verdict or indictment rendered by them 3. Prohibits injury of any court officer, commissioner, or similar officer on account of the performance of his official duties, 4. The “Omnibus Clause” serves as a catchall, prohibiting persons from endeavoring to influence, obstruct or impede the due administration of justice.  More general scope than the earlier clauses D in this case is charged with a violation of the Omnibus Clause^^  Pettibone v. US (1893)- 1st case this Court construed §1503 statute o HELD: “a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court. o If the D lacks knowledge that his actions are likely to affect the judicial proceeding  he lacks the requisite intent to obstruct.  Recent decisions in Court of Appeals o Tended to place metes and bounds on the broad language of the catchall

provision. The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding (such as an investigation independent of the court’s or grand jury’s authority.  US v. Russell o Construing the above phrase as a “nexus” requirement  the act must have a relationship in time, causation or logic with the judicial proceedings o The endeavor must have the “natural and probable effect” of interfering with the due administration of justice o D’s action does not need to be successful, an “endeavor” suffices  Argues that the term “corruptly” is vague and overbroad as applied to the type of conduct at issue in this case and that Congress narrowed the scope of the Omnibus Clause when it expressly punished his conduct in 18 USC §1512  Argues that Respondent “understood that his false statements would be provided to the grand jury” and that he made the statements with the intent to thwart the grand jury investigation and not just the FBI investigation. o To show this they cited to a recorded convo between Aguilar and FBI agent where Aguilar asks whether he is a target of a grand jury investigation  the agent said “There is a Grand Jury Meeting. Convening I guess that’s the correct word. Um some evidence will be heard I’m…I’m sure on this issue.” o Gov’t says because of this ^  Aguilar knew of the pending proceeding and that his statements are therefore analogous to those made directly to the grand jury itself, in the form of false testimony or false documents. Court says its not going to address Aguilar’s argument because we hold that the “nexus” requirement developed in the decisions of the Court of Appeals is a correct construction of §1503. o

Respondent (Anguilar’s) Argument Gov’t Argument

Court’s Holding

Court goes on to say that uttering false statements to an investigating agent (which that is what it seems to be all that was proved here ) who might or might night testify before a grand jury is NOT sufficient to make out a violation of the catchall provision of § 1503. Court says that the transcript cited by the Gov’t would not enable a rational tried of fact to conclude that respondent knew that his false statement would be provided to the grand jury and that the evidence goes no further than showing that respondent testified falsely to an investigating agent  such conduct, falls on the other side of the statutory line from that of one who delivers false documents or testimony to the grand jury itself.  the whole thing is that he made this statements to an INVESTIGATING AGENT, NOT THE GRAND JURY

Reasoning/ Rationale: Dissent, Scalia:

And that false testimony given to an investigating agent who has not been subpoenaed or directed to appear before the grand jury  does not have the “natural and probable effect” of interfering with the due administration of the law. The Gov’t did not show here that the agents acted as an arm of the grand jury, or that the grand jury had even summoned the testimony of these particular agents. ´ Scalia criticizes majority’s reading of the word “endeavor”  Scalia says it described any effort or essay to accomplish the evil purpose that the section was enacted to prevent

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It is immaterial whether the endeavor to obstruct pending proceedings is possible of accomplishment Thus, Scalia says §1503 reaches only purposeful efforts to obstruct the due administration of justice, i.e. acts performed with that very object in mind. Scalia said there is no “nexus” requirement and thus no “natural and probable causes” requirement in the statute and that basically the Majority substitutes the intent requirement for the “natural and probable causes” requirement. “Corrupt”  “an act is done corruptly if it’s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.

Scalia believes that any act done with the intent to “obstruct the due administration of justice” is sufficient to impose criminal liability Notes, p. 337: 

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Elements/ Source of the “Nexus Requirement” o Courts use various formulations to describes elements of a prosecution under the “omnibus” clause o Combination of those is that the Gov’t must prove beyond a reasonable doubt that the defendant: (1) Knowing that a judicial proceeding was pending; (2) Corruptly; (3) Endeavored; (4) To influence, obstruct or impede the due administration of justice. o US v. Thomas  treated “nexus” requirement as modifying the “due administration of justice” element Perjury- to show ab obstruction based on false testimony, courts have required the government to show that the false testimony was material. United States v. Bonds (9th Cir could not agree on the definition of materiality that ought to be employed to test witness testimony before a grand jury. Facts/ Background

2002- federal gov’t through Criminal Investigation Division of IRS began investigating distribution of steroids and other performance enhancing drugs (PEDs) to determine whether the distributors of PEDs laundered the proceeds earned by selling those drugs. Gov’t investigation focused on distribution of steroids by BALCO (Bay Area Laboratory Co-operative). Govt raided BALCO and obtained evidence suggested that BALCO manufactured drugs that were delivered to Barry Bonds Gov’t convened grand jury in 2003 to further investigate sale of the drugs  Bonds testified under a grant of immunity (if he was not truthful, his testimony could be used in a case against him for perjury)  Bond denied knowingly using steroids of any other PEDS provided by BALCO Bonds indicted on basis of his grand jury testimony. Jury found one count of obstruction of justice in violation of §1503 based off of “Statement C” – which the jury found as misleading or evasive :

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Question: Did Greg ever give you anything that required a syringe to inject yourself with? Answer: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't—we don't sit around and talk baseball, because he

9th Cir. En banc

Concurrence

Kozinski

Concurrence

N.R. Smith

knows I don't want—don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends, you come around talking about baseball, you go on. I don't talk about his business. You know what I mean?  Question: Right.  Answer: That's what keeps our friendship. You know, I am sorry, but that— you know, that—I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see. Ultimately reversed Bonds’ conviction- “during a grand jury proceeds, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, D’s convictions for obstruction of justice is not supported by the record and his conviction must be recersed.  Starts off by talking about the potentially dangerous reach of the statute: risks chilling zealous advocacy, gives prosecutors immense power to pick and choose who they want to prosecute and who they will gave a pass to  thus, Court needs to limit it and such limitation exists in “requirement of materiality”  Materiality: o limits convictions to those situations where an act “ has a natural tendency to influence or was capabale of influencing, the decision of the decisionmaking body o the govt must prove beyond a reasonable doubt that the charged conduct was capable of influence a decision making person or entity  Weighing materiality: o Consider the “intrinsic capabilities of the …statement itself.”….Rather than the statements actual effect on the decision maker and evaluate the statement in “the context in which it was made.”  Found that “Statement C”  standing alone, did not have capability to divert the govt from its investigation or influence the grand jury’s decision to indict anyone  Statement C says nothing of value or detriment to the investigation, it does not enlighten, obfuscate, confirm or deny anything within the scope of the question asked.  Lastly, Kozinski said Statement C should not be considered in isolation, the Court was bound to look at the “record as a whole to determine whether a rational tried of fact could have found the statement capable of influencing the grand jury’s investigation, in light of D’s entire grand jury testimony.  source of materiality should come from Aguilar  standard of materiality is not whether the statement was capable of influencing the decision of the grand jury, but rather whether the endeavor to obstruct justice had the “natural and probable effect” of interfering with the due administration of justice.  Statement C could not have natural and probable effect of impeding the grand jury’s investigate function, based on 2 reasons:

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1. Bronston v. US- nonresponsive but literally true answer that is misleading by negative implication cannot constitute perjury, there had to be proof of a literal falsity ( because questioning lawyer’s job to pin down nonresponsive witnesses) HERE, same thing, it is the government duty to clarify merely misleading or evasive testimony. 2. United States v. Griffin- truthful but misleading or evasive testimony must amount to a refusal to testify before it is material  “evasive or misleading testimony, in this light, can only obstruct the due administration of justice when it completely thwarts the investigative nature of the tribunal when it derails the grand jury as effectively as if the witness refused to answer the question at all. Taken together, both these cases lead to the conclusion that  a single truthful but evasive or misleading statement can never be material, thus, the natural and probable effect of a single true but evasive response to the gov’t questioning is not to impede the grand jury, but, rather to prompt follow up questions.

United States v. Cueto – 7th Cir. (1998) Facts:

Thomas Venezia owned B & H Vending/Ace Music Corporation (“B & H”), a vending and amusement business, and operated an illegal video gambling business through a pattern of racketeering activities and illegal gambling payouts, in violation of state and federal antigambling and racketeering laws hired Amiel Cueto, an attorney, to represent him as well as to defend the tavern owners associated with B & H in the event of any arrests and/or criminal charges for their participation in the illegal gambling operation March of 1995, Venezia and B & H were indicted on federal racketeering charges, in addition to other related charges including illegal gambling.1 Throughout the investigation and prior to Venezia's indictment, Cueto served as Venezia's lawyer and advisor. Cueto was not Venezia's attorney of record during the trial; nonetheless, the record indicates that Venezia continued to rely on Cueto's advice throughout the prosecution of the racketeering case. ILCC Agent Bonds Robinson worked on the task force and investigated the gambling operations in cooperation with the state police, Eventually, the FBI became interested in the state's investigation, and ultimately decided to use Robinson in a federal investigation of illegal gambling operations in St. Clair County, particularly Venezia's gambling operation o In an attempt to gather evidence, Robinson, who was present at the VFW raid, indicated that Venezia could avoid further interruptions of his illegal gambling operation if he were to offer a bribe to discourage the investigation and the interference, and he suggested to Venezia that they meet. Venezia consulted with Cueto, who instructed Venezia to meet with Tom Daley, one of his law partners at the time o In an attempt to portray Robinson as a dishonest agent, Daley reported to the

ILCC that Robinson had solicited a bribe at the VFW. A meeting was then scheduled between Venezia and Robinson, who met at B & H corporate headquarters. Robinson taped the conversation at the FBI's request, and the tape was introduced into evidence in the racketeering case and at Cueto's trial During the investigation, the record indicates that Cueto and Venezia developed more than a professional attorney-client relationship, entering into various financial transactions and business deals, some of which involved secret partnerships. A few examples include: (1) they purchased unimproved real estate, developed the real estate, built and managed a topless nightclub (Club Exposed), which operated some of B & H's illegal gambling machines; (2) Venezia and Cueto incorporated Millennium III, an asbestos removal company, and applied for and obtained a $600,000 line of credit to complete the purchase acquisition; and (3) Venezia purchased Cueto's office building and moved B & H corporate headquarters into it. The record demonstrates that in order to obtain financing, Venezia reported B & H as a principal asset on his financial statements and loan applications to establish the necessary credit he and Cueto needed to become joint borrowers on various loans. Moreover, the record indicates that the lender in the Millennium purchase relied upon Venezia's financial statement in its decision to loan the money for the acquisition.

together Venezia and Cueto participated in various business transactions, in which millions of dollars exchanged hands to finance the purchases of various real estate interests and construction costs relating to various development projects, including certain gambling operations.6 The indictment specifically charged that Club Exposed, the nightclub owned by Venezia and Cueto, Millennium III, as well as other business transactions in which they were involved, depended upon the continued operation of B & H and the illegal gambling business to secure and to cover the various loans and debts they incurred in their financial ventures Even after Cueto became a business partner of Venezia and invested in various real estate and development projects with him, he continued to give Venezia legal advice. Although Cueto was not an attorney of record, he participated in the preparation of Venezia's defense in the racketeering prosecution. Cueto continued to urge State's Attorney Haida to indict Robinson for perjury. Also contacted Congressman to contact Haida to indict Robinson for perjury

Counts 1,2,6, 7

August 1994- Govt got grand jury to examine evidence by FBI investigation of Venezia  indicted Venezia  7 months later  another grand jury returned separate 9 count indictment against Cueto, Venezia and Romanik  subject convictions on various counts of this indictment are the subject of this appeal. 1  Charged Cueto in 3 part conspiracy to defraud US (§371) 2,6,7  indictment charged obstruction of justice in violation of the omnibus clause of 18 U.S.C. § 1503,9 alleging that Cueto ...