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Obstruction of Justice

Obstruction of Justice: A Criminal Statute That Can Be Used or Abused

Obstruction of justice crimes are contained in Chapter 73 of the federal criminal code. There are twenty-two separate violations that range from obstructing a person authorized to serve a judicial writ issued by a court of the United States to murdering a witness to prevent testimony.

This blog will concentrate on three of the obstruction of justice statutes contained in Chapter 73 that impact businesses as well as individuals who come into contact with investigations conducted by federal law enforcement agencies and federal grand juries.

Title 18, United States Code, §1503, involves protecting jurors and court officials from threats or the use of force in an effort to influence or intimidate a member of a grand jury, a trial juror, or federal court. Such conduct is clearly improper. The statute, however, goes beyond threats or intimidation of judges or jurors to include the following broad language "whoever… Corruptly influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice…."

The broad definition of corruptly impeding or endeavoring to influence a proceeding can be subject to different interpretations. This language has broad application as it applies to grand jury proceedings. A grand jury proceeding often lasts months, if not years, and involves federal investigators acting as agents for the grand jury by serving subpoenas on businesses and individuals that call for massive amounts of documents and electronic data. Producing, gathering, and preserving information sought by the grand jury can involve conduct that might be interpreted by the government as obstruction. When complying with requests for documents, extreme care must be taken to avoid the slightest appearance of conduct that raises a question of obstruction.

Title 18 United States Code, §1512, is entitled "Tampering with a witness, victim, or an informant". On its face, the title seems clear and unambiguous. The definition of tampering, however, may be subject to different interpretation. For example, firing an employee might be considered tampering with a witness. More troubling, however, is the fact that the same statute also makes it a crime to corruptly alter, destroy, mutilate, or conceal a record, document, or other object or attempt to do so within with the intent to impair the integrity or availability of the record or document from use in the official proceeding. This statute applies to any federal court, or agency proceeding. The statute, therefore, applies to grand jury investigations and investigations by federal law enforcement agencies independent of the grand jury.

The third obstruction statute that has seen broad application is found under Title 18, U.S. Code, §1519. The statute is entitled "Destruction, alteration, or falsification of records in federal investigations and bankruptcy." This outlaws knowingly altering, destroying, mutilating, or concealing a record or document. The law also prohibits making a false entry or document with the intent to impede, obstruct, or influence an investigation within the matter under the jurisdiction of any agency of the United States.

Each of these statutes presents a clear and present danger to anyone who is under investigation by federal law enforcement or grand jury. It is not uncommon for a grand jury subpoena to call for production of thousands of documents and huge amounts of electronically stored data. The process of gathering the documents and data called for by the grand jury or by a federal agency, like the FBI, can be daunting, expensive and time-consuming. As burdensome as the production may be, it must be remembered that a mistake such as inadvertently modifying electronic data, failure to discover electronic data, failure to discover documentation called for by the government, or the inadvertent misplacement of documents may be perceived as a violation of the broad obstruction of justice statutes.

If the government believes that a bad motive was involved in the failure to produce documents or data, the chances of an arrest and indictment increase significantly. The procedures and practices to comply with disclosure demands by federal law enforcement agencies must be carefully and scrupulously designed to ensure that the government does not erroneously believe that any obstruction of justice occurred.

Our firm has the experience to properly advise clients as to the production of documents and electronic data so as to avoid conduct that may be perceived to be obstruction of justice. We have been involved in federal investigations involving hundreds of thousands of documents and terabytes of electronic data. The proper handling of production of such large amounts of material is essential to our goal of preventing our clients from being wrongfully indicted with the resulting cost, public humiliation, and stress of formal criminal charges.

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