When the FBI Comes Calling…®
When the FBI Comes Calling…®
You may be charged with:
Obstruction of Justice
There exist numerous forms of obstruction of justice present within the federal criminal code, though the five primary statutes include: (1) Obstruction of Court Orders, (2) Obstruction of Department or Agency proceedings, (3) Obstruction of Criminal Investigations, (4) Influencing or Injuring Officer or Juror Generally, and (5) Tampering With a Witness, Victim, or Informant, and (6) Resistance to Extradition Agent.
Obstruction of Court Orders (18 U.S.C. § 1509)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant, by threat or force, prevented, or otherwise obstructed the exercise of rights or the performance of any duties under any order, judgment, or decree of a federal court;
2. That the defendant acted knowingly and willfully, with intent to obstruct.
So how have the courts interpreted these statutes?
A. Those who impede upon the successful operation of public schools may be charged under the statute. Stanley v. Darlington County School Dist., 313 F. Supp. 439 (D.S.C. 1970).
B. One must have actual knowledge of a court order at the time of alleged actions in order to be convicted under the statute. United States v. Griffin, 525 F.2d 710 (1st Cir. 1975).
Potential Punishment:
One may be convicted for a misdemeanor, fined, and imprisoned for up to one year.
Obstruction of Proceedings Before Departments, Agencies, and Committees (18 U.S.C. § 1505)
The distinguishing factor between §1505, §1509, and §1510 is that while §1509 involves a court order by way of an ongoing criminal proceeding and §1510 deals with an ongoing criminal investigation, § 1505 arises out of non-judicial, Congressional, or civil proceedings. Vague wording in the statute, however, leave it open to wide interpretation and application in judicial proceedings as well. In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant withheld, misrepresented, or otherwise obstructed an ongoing investigation or proceeding before any department or agency of the United States;
2. That the defendant acted with intent to avoid, evade, prevent, or obstruct the proceeding.
So how have the courts interpreted this statute?
A. An FBI investigation is not, however, sufficient for qualification as a “proceeding,” as required by the statute. Proceedings refer only to those instances which relate to the scope of rule-making or the adjudicative power vested within an agency by law. Because the FBI lacks such authority in investigations, obstructions of an FBI investigation do not fall under the scope of this statute. Higgins v. United States, 511 F. Supp. 453 (1981).
B. Both an Article 32 hearing under the Uniform Code of Military Justice (U.C.M.J.) and a court-martial qualify as “proceedings” under the statute. United States v. Daminger, 30 C.M.R. 826 (1960).
Potential Punishment:
Anyone convicted under this statute may be fined and imprisoned for up to 5 years. Pursuant to the Intelligence Reform and Terrorism Prevention Act, if the offense is related to international or domestic terrorism, than one may be imprisoned up to 8 years.
Obstruction of Criminal Investigation (18 U.S.C. § 1510)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant endeavored to or did obstruct, delay, or prevent the communication of information related to a violation of any criminal statute, by means of bribery; or
2. That the defendant, being an officer of a financial institution, notified (directly or indirectly) any other person about the existence or contents of a subpoena for records of that financial institution, or information provided to a grand jury in response to that subpoena;
3. That the act of civil disorder engaged in or furthered by the defendant was aimed at obstructing the functions of the federal government or interstate commerce.
So how have the courts interpreted this statute?
A. The term "endeavor" is considered requires a lower standard for evidence than an "attempt" found in other statutes. United States v. Leisure, 844 F.2d 1347 (8th Cir. 1988).
B. No violation of the statute is present when there is no federal investigation either being conducted or considered, or where there is no particular investigative agent. United States v. Siegel, 717 F.2d 9 (2nd Cir. 1983).
C. Beatings of a government informant, with the knowledge of his standing as such and intent to impede his ability to provide further assistance to the government, is considered a violation of the statute, even following the initiation of judicial proceedings. United States v. Koehler, 544 F.2d 1326 (5th Cir. 1977).
Potential Punishment:
Anyone convicted under this statute may be liable for fine and imprisoned for up to 5 years.
Influencing or Injuring Officer or Juror (18 U.S.C. § 1503)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant influenced, intimidated, impeded, or assaulted, through threats, force, or communication, a juror or officer of the court;
2. That the defendant act knowingly and willingly.
So how have the courts interpreted this statute?
A. Unlawfully obtaining undisclosed grand jury transcripts to be used as a false testimony in an ongoing criminal proceeding is a violation of the statute. United States v. Friedman, 445 F.2d 1076 (9th Cir. 1971).
B. Assaulting a witness who provides information which leads to one's conviction because he or she provided that testimony is considered a violation of the statute. United States v. Woodmansee, 354 F.2d 235 (2nd Cir. 1965).
C. Conviction under both this statute and 18 U.S.C. § 1512 (discussed below) for the same act is not considered Double Jeopardy prohibited under the 5th Amendment because 18 U.S.C. § 1512 explicitly does not require proof that the defendant knew of an ongoing judicial proceeding. United States v. Risken, 788 F.2d 1361 (8th Cir. 1986).
Potential Punishment:
Anyone convicted under this statute may be liable for fine and imprisoned for up to10 years. If the defendant attempted to murder, or otherwise committed a class A or B felony in pursuance of such obstruction, he may be imprisoned for up to 20 years. In the case of a killing, the defendant may be imprisoned up to life, and may face the death penalty.
Tampering With A Witness, Victim, or Informant (18 U.S.C. § 1512)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant committed, or attempted to commit, murder; or
2. That the defendant used physical force, or the threat of physical force;
3. That the defendant acted with the intent to prevent the attendance or testimony of any person in a judicial proceeding, prevent the production of a record or document in a judicial proceeding, or prevent the communication by any person to a law enforcement officer or judge of information relating to the commission or possible commission of a federal offense;
So how have the courts interpreted this statute?
A. Making false statements to others with the intent that they will lie to the government or in a judicial proceeding, is in violation of this statute. United States v. Rodolitz, 786 F.2d 77 (2nd Cir. 1986).
B. It was considered sufficient evidence to demonstrate a threat when defendant said to another, "you know what you are going to get? I'm gonna show you what you gonna get." United States v. Workman, 860 F.2d 140 (4th Cir. 1988), 27 Fed. R. Evid. 77.
C. Attempting to expose one publicly as a government informant is itself insufficient for conviction under the statute. United States v. Davis, 183 F.3d 231 (3rd Cir. 1999).
Potential Punishment:
Anyone convicted under this statute may be liable for fine and imprisoned for up to10 years. If the defendant attempted to murder, or otherwise committed a class A or B felony in pursuance of such obstruction, he may be imprisoned for up to 20 years. In the case of a killing, the defendant may be imprisoned up to life, and may face the death penalty.
Resistance to Extradition Agent (18 U.S.C. § 1502)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant recruited soldiers or sailors in any territory under the control of the federal government to engage in armed hostility against the United States; or
2. That the defendant opened a recruiting station for the enlistment of such soldiers to survive in any capacity to rise in armed hostility against the United States;
3. That the defendant acted knowingly and willingly.
Potential Punishment:
One may be convicted of a felony punishable by fine, and up to 5 years imprisonment.
When one is charged under this statute, the AUSA will seek an indictment from a Federal Grand Jury and may include charges for Import Crimes, Export Crimes, Trading With the Enemy, Industrial Espionage, Transnational Money Laundering, or NBC Weapons, and is likely to couple those charges with lesser included offenses such as False Statements where applicable. Should the government decide not to immediately seek indictment, one may be held under the Material Witness statute or, if related to any ongoing war (including the War on Terrorism) may be held through Combatant Detention.