'Corruptly Persuading' -- the Obstruction of Justice

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VOLUME 16, NUMBER 5 • May 2002 MayAndrews 2002 Publications White-Collar Crime Reporter 1 WH I T E-COL L A R CR I ME R EPORT ER SENIOR EDITOR Robert Woodman McSherry COMMENTARY M.S., Criminology CONTRIBUTING EDITOR Joseph F. Savage, Jr. ‘Corruptly Persuading’ Testa, Hurwitz & Thibeault, LLP BOARD OF EDITORS The Obstruction of Justice Stuart J. Baskin Shearman & Sterling By Richard M. Strassberg and Roberto M. Braceras* Roger J. Bernstein Bernstein & Milner Barry A. Bohrer Obstruction-of-justice prosecutions may be relatively rare, but Morvillo, Abramowitz, Iason & Silberberg Judd Burstein they sure do dominate the headlines. The nation’s attention was Attorney riveted for nearly a full year during the Independent Counsel’s Charles M. Carberry obstruction-of-justice investigation of President Clinton — for Jones, Day, Reavis & Pogue John C. Coffee Jr. which he was ultimately impeached. And now, just a few years Columbia Law School later, the nation is again consumed with charges of cover-up and Thomas C. Frongillo Testa, Hurwitz & Thibeault, LLP obstruction of justice, this time at Arthur Andersen and within Jeffrey Glekel the Catholic Church. From Watergate and Whitewater to the Skadden, Arps, Slate, Meagher & Flom Boston Archdiocese and Arthur Andersen, many of this Jay Goldberg Attorney country’s most powerful business and political leaders have been Frederick P. Hafetz challenged — and, in some instances, brought down — not by their Hafetz & Necheles own substantive wrongdoing, but rather by their efforts to Stephen T. La Briola Fellows, Johnson & La Briola, LLP “coverup” and obstruct justice. Gerald B. Lefcourt Gerald B. Lefcourt P.C. Despite the seemingly clear-cut nature of “obstruction of jus- Alan Levine Kronish, Lieb, Weiner & Hellman tice,” the actual case law and the obstruction-of-justice statutes John F. Libby are far from straightforward. Indeed, perhaps because obstruc- Manatt, Phelps & Phillips, LLP 1 Gary Naftalis tion of justice prosecutions are relatively rare, or because most Kramer, Levin, Naftalis, & Frankel, LLP significant obstruction of justice cases result in pleas, particularly Steven Alan Reiss when involving political or business leaders, there is a lack of Weil, Gotshal & Manges Lawrence S. Robbins familiarity with the obstruction of justice statutes, even among Mayer, Brown & Platt the most experienced practitioners. Suffice to say, the conflict- Peter J. Romatowski ing and overlapping obstruction of justice statutes, together with Jones, Day, Reavis & Pogue Elliot G. Sagor the conflicting and ambiguous case law, present very real chal- Hogan & Hartson, LLP lenges for prosecutors and defense counsel alike. Mark D. Seltzer Holland & Knight John S. Siffert Obstruction-of-Justice Statutes Lankler, Siffert & Wohl Peter L. Zimroth While the public and media quickly become engrossed in cover- Arnold & Porter ups and obstruction-of-justice scandals, only diehard prosecutors PRESIDENT Joanne E. Fiore, Esq. and defense counsel become absorbed in the blood and guts of the actual obstruction statutes, found at Title 18, § 1500 et seq. EXECUTIVE EDITOR Mary Ellen Fox Obstruction of justice comes in all forms, including physical threats to witnesses and bribing judges and jurors, but we focus MANAGING EDITOR Phyllis Lipka Skupien, Esq. here on that omnipresent species of obstruction epitomized by the

Reprinted with permission of Andrews Publications © 2002. www.andrewsonline.com. 2 White-Collar Crime Reporter May 2002 alleged wrongdoing at Andersen, namely, the conceal- 18 U.S.C. § 1505 ment and manipulation of evidence, including the shredding of documents. For these purposes, the Section 1505 criminalizes the obstruction of “the relevant statutes are Sections 1503, 1505, and 1512. proper administration of the law” before “any depart- Although these three statutes have similarities and ment or agency of the United States,” or in any overlap in certain important respects, there are key congressional inquiry or investigation. Section 1505 differences that necessarily affect the government’s provides, in pertinent part: charging decisions and, ultimately, the target’s defense strategy. Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, 18 U.S.C. § 1503 obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administra- Section 1503, which contains the “omnibus” obstruction tion of the law under which any pending proceed- provision, broadly prohibits obstruction of “the due ing is being had before any department or agency administration of justice,” either “corruptly, or by of the United States, or the due and proper exer- threats of force, or by any threatening letter or commu- cise of the power of inquiry under which any nication.” Section 1503 provides, in pertinent part: inquiry or investigation is being had by either House, or any committee of either House or any Whoever corruptly, or by threats or force, or by joint committee of the Congress shall be [guilty of any threatening letter or communication, endeavors a crime]. to influence, intimidate, or impede any grand or To establish the elements of a violation of Section 1505, petit juror, or officer in or of any court of the the government must prove that (1) a proceeding was United States ... in the discharge of his duty, or pending before a department or agency of the United injures any such grand or petit juror in his person States or before Congress; (2) the defendant was or property ... or injures any such officer ... in his aware of the pending proceeding; and (3) the defen- person or property on account of the performance dant intentionally and corruptly endeavored to obstruct of his official duties, or corruptly or by threats or that proceeding.5 As with Section 1503, the restric- force, or by any threatening letter or communica- tions of Section 1505 only come into play when a tion, influences, obstructs, or impedes, or endeavors federal agency or congressional proceeding is pending, to influence, obstruct, or impede, the due administration and the defendant has knowledge of that pending of justice, shall be [guilty of a crime]. proceeding. To be found guilty under Section 1503, the government must prove that (1) a judicial or grand jury The “pending proceeding” requirement of these two proceeding was pending; (2) the defendant had statutes has drawn much attention recently. With knowledge of the pending proceeding; and (3) the regard to the Andersen case, commentators have defendant acted corruptly with the intent to influence, debated whether the alleged destruction of documents obstruct, or impede that proceeding in its due adminis- could give rise to criminal liability for obstruction of tration of justice.2 In the context of an obstruction justice under Sections 1503 and 1505, and how the case premised on the destruction of documents, the absence of a subpoena might bolster Andersen’s government need not show that a subpoena had been ability to claim it acted innocently, without knowledge served upon the defendant calling for the production of a pending proceeding.6 As it turns out, however, of the documents prior to their destruction in order to that debate became largely moot as a result of the sustain a conviction.3 It is sufficient if the govern- government’s decision to charge Andersen and David ment can otherwise prove the defendant’s knowledge Duncan, the Andersen partner largely responsible for of the pending proceeding and intent to impede that the Enron account, with violating Section 1512, which, proceeding through the document destruction.4 unlike Sections 1503 and 1505, contains no “pending proceeding” requirement.7 As is clear from the text of Section 1503, the statute is limited in its application to pending judicial and 18 U.S.C. § 1512 grand jury proceedings. Significantly, Sections 1505 and 1512 extend the reach of the obstruction of Section 1512 was created by the Victim and Witness justice laws beyond the court and grand jury context. Protection Act of 1982, 96 Stat. 1248, 1249 (1982), specifically to address the influencing of victims,

witnesses and informants,8 and, since its enactment, it cause or induce another person to alter, destroy, has become the predominant obstruction-of-justice mutilate, or conceal an object (4) with the intent to statute. From 1995 through 2000, approximately 58.5 to impair the object’s integrity or availability for use in 75 percent of the total cases filed in U.S. district courts an official proceeding.11 each year under Sections 1503, 1505, and 1512 were filed under Section 1512.9 Section 1512 both collected While no proceeding need be pending or about to be and expanded the previously existing witness protection instituted in order to invoke the restriction of provisions in Sections 1503, 1505, and 1510 by, for Section 1512,12 the obstructive conduct must be in example, prohibiting “misleading conduct” to influence a connection with an official proceeding. The statue witness (in addition to threats, force and intimidation), defines official proceeding broadly to cover, among other and making it a misdemeanor to “harass” another with things, federal court, grand jury, agency and congres- the result of influencing a witness.10 sional proceedings,13 and covers obstructive conduct when a defendant expected that such an official pro- Section 1512 provides, in pertinent part: ceeding would be initiated in the foreseeable future.14 In connection with the destruction of documents, Section 1512 (b) Whoever knowingly uses intimidation or makes explicit that it is no defense that a document physical force, threatens, or corruptly persuades would have been inadmissible or privileged had it not another person, or attempts to do so, or engages in been altered, destroyed or otherwise withheld.15 misleading conduct toward another person, with intent to Section 1512 solely covers obstructive conduct directed toward third parties, and therefore does not (1) influence, delay, or prevent the testimony of reach those situations where a defendant is acting any person in an official proceeding; alone, even if the defendant acts with the specific (2) cause or induce any person to intent to obstruct justice. Such individual conduct, however, may well fall within the reach of (A) withhold testimony, or withhold a record, Sections 1503 and 1505. document, or other object, from an official proceeding; Thus, there are several relatively clear-cut criteria (B) alter, destroy, mutilate, or conceal an object that distinguish the three statutes, and that might with intent to impair the object’s integrity or dictate how a defendant is charged: (1) whether or availability for use in an official proceeding; not a proceeding is pending at the time of the alleged crime; (2) what type of proceeding is involved; and (C) evade legal process summoning that person to (3) the participation of third parties in the alleged appear as a witness, or to produce a record, obstructive conduct.16 Perhaps the most controversial document, or other object, in an official proceeding; distinction among the three statutes, however, turns or on the element of intent that, at first blush, would (D) be absent from an official proceeding to which appear to be strikingly similar in all three statutes, as such person has been summoned by legal process; they all require the defendant to act “corruptly.” The or interpretation of “corruptly” in the various obstruction (3) hinder, delay, or prevent the communication to provisions, however, has been anything but uniform, a law enforcement officer or judge of the United and remains the source of conflict among the U.S. States of information relating to the commission or circuit courts of appeals with respect to its proper possible commission of a Federal offense or a application to cases — like the Andersen case — violation of conditions of probation, parole, or brought under Section 1512. release pending judicial proceedings; ‘Corruptly’ and the Intent to Obstruct Justice shall be [guilty of a crime]. As the First Circuit has noted, “[T]he scienter ele- To establish the elements of an offense under ment in the obstruction statute is the subject of more Section 1512 in connection with the destruction of confusing case law than can be described in brief documents, the government must prove that the compass.”17 Indeed, Sections 1503, 1505 and 1512 all defendant (1) knowingly (2) used intimidation, physi- require the defendant to act “corruptly,” but differ in cal force, threats, corrupt persuasion, or misleading how that requirement is set forth, alternating between conduct toward another person (3) with the intent to “corruptly” influences, obstructs, or impedes the due

Reprinted with permission of Andrews Publications © 2002. www.andrewsonline.com. 4 White-Collar Crime Reporter May 2002 administration of justice or the law, as set forth in misleading statement, or withholding, concealing, Sections 1503 and 1505, and “corruptly persuades” altering, or destroying a document or other informa- with the intent to cause or induce another to obstruct tion.”23 Since this definitional addition to the statute, justice in Section 1512. courts have generally taken the view that the “corruptly” language of Section 1505 provides the same Corruptly Under Section 1503 specific intent requirement as in Section 1503, and can also be satisfied when the natural and probable In the context of Section 1503, courts have generally effect of the defendant’s conduct is to obstruct interpreted “corruptly” as imposing a specific intent justice.24 element, requiring the government to prove that the defendant acted with an improper motive — meaning, ‘Corruptly Persuades’ Under Section 1512 that he or she acted with the purpose of obstructing justice.18 Generally, a corrupt intent can be inferred As originally enacted in 1982, Section 1512 did not from the defendant’s actions where the natural and contain the “corruptly persuades” language, and thus probable result of that conduct is to interfere with the did not prohibit non-coercive witness tampering that judicial process.19 It is also fairly well settled that did not otherwise involve misleading conduct by the “corruptly” as used in Section 1503 is not unconstitu- defendant. In the mid-1980s, the Second Circuit held tionally vague or overbroad, as it has long been that Section 1512, as then drafted, did not prohibit a interpreted by courts as requiring an improper purpose defendant from persuading another person to lie to the to obstruct justice.20 government, inasmuch as such conduct was neither Corruptly Under Section 1505 coercive nor misleading to the third party.25 As a result, Section 1512 was amended by the Anti-Drug If you assumed that the scope of “corruptly” in Abuse Act of 1988, Pub.L. No. 100-690, 102 Stat. Section 1505 mirrored that of Section 1503, you, like 4181, to add the “corruptly persuaded” language. the Independent Counsel in the Iran/Contra scandal of Congress expressly clarified that the term “corruptly the 1980s, would have been surprised by the decision persuades” “does not include conduct which would be of the D.C. Circuit in United States v. Poindexter.21 misleading conduct but for a lack of a state of In Poindexter, the court reversed the conviction of mind.”26 Unfortunately, no definition of what “cor- John Poindexter, the former national security advisor ruptly persuades” does mean (as opposed to what it under President Reagan, for obstructing a congres- does not mean) is found in the statute. sional proceeding by lying to the investigating committee in violation of Section 1505. The D.C. Circuit, in Courts that have confronted the “corruptly persuades” examining the scope of “corruptly” language under language of Section 1512 have grappled with the Section 1505, concluded that “corruptly” would be appropriate meaning to be afforded this term, given superfluous if not limited to transitive conduct — that the peculiar structure of the statute. As noted above, is, conduct by the defendant acting on another person, while Section 1512(b) applies to a defendant who as opposed to conduct the defendant engaged in “corruptly persuades” another, it also expressly alone.22 requires that the defendant act with specific intent to obstruct justice as enumerated in each of the sub- Thus, Poindexter’s personal lying to Congress did not clauses of the statute. What meaning to afford the fall within the statute’s reach. The D.C. Circuit also “corruptly persuades” language, when other language opined that the “corruptly” language of Section 1505 in the statute seems fully to require a defendant to act needed to mean more than just immorally or improperly, with specific intent to obstruct justice, is an issue that since those terms provide no guidance to a prospective has split the circuit courts.27 defendant regarding the scope of the prohibited conduct. As a result, the Poindexter court concluded that The Third Circuit confronted this issue head on in the statute would be unconstitutionally vague if “cor- United States v. Farrell and United States v. Davis, ruptly” were not restricted in its application to influenc- holding that the “corruptly persuades” language of ing another person to violate a legal duty. Section 1512 must be read to require more than just an improper motive, or specific intent to obstruct justice, to In response to Poindexter, Congress specifically avoid rendering the term surplusage, as such intent is defined the meaning of “corruptly” under Section 1505 already required by the express intent provisions of the as “acting with an improper purpose, personally or statute.28 Apparently troubled by the same vagueness by influencing another, including making a false or concerns articulated by the D.C. Circuit in Poindexter,

the Third Circuit concluded that “corruptly persuaded” defendant could intend to obstruct justice but not have was properly limited, given the language of Section 1512, an improper motive, and thus, that there is no need to to persuading another to violate a legal duty.29 While add any additional limitation into the corruptly per- acknowledging that this reading of “corruptly” differed suades language.38 While this argument rejects the from the meaning of “corruptly” generally applied in notion that “corruptly” as used in Section 1512 is cases under Sections 1503 and 1505, the Third Circuit unconstitutionally vague, it does little to address how noted that in Sections 1503 and 1505, “corruptly” such a definition affords “corruptly” meaning, separate provided the sole mens rea element in the statute, and from the express intent clauses of the statute, and thus did not present the problem occasioned by the leaves unexplained the scope of constitutionally pro- language of Section 1512.30 tected speech — since most speech, including persua- sive speech, is generally constitutionally “protected” Applying this definition of “corruptly persuades,” the under the First Amendment — that would subject a Farrell court held that a defendant, who, with the intent defendant to exposure under the statute. to hinder an investigation, attempted to persuade a co- conspirator to exercise his Fifth Amendment rights and Various courts have noted the outstanding dispute not disclose information to law enforcement, did not act concerning the “corruptly persuades” language in corruptly because he did not seek to persuade the third Section 1512 since Farrell, Shotts and Davis, but party to violate any legal duty, and therefore was not have sidestepped its resolution by finding that the chargeable under Section 1512.31 particular defendant’s conduct being considered involved persuading a third party to violate a legal duty.39 Not all circuits agree with this reasoning. The Second and 11th Circuits take the view that, to be guilty of Conclusion “corruptly persuading” another to obstruct justice under Section 1512, the defendant need only have an “im- The split in the circuits regarding the meaning of proper motive.”32 These courts take the position that “corruptly persuades” under Section 1512 suggests “corruptly persuade” in Section 1512 has the same several interesting issues that may arise in obstruc- meaning as “corruptly” in Section 1503 — that is, tion-of-justice prosecutions, especially ones, like “persuasion that is motivated by an improper pur- Andersen, focused on the destruction of documents. pose.”33 Only the 11th Circuit, however, has addressed From the government’s point of view, one of the great the issue that the Third Circuit found troubling — advantages of prosecutions under Section 1512 is the whether such an interpretation of “corruptly per- ability to proceed against a defendant for obstructive suades” in Section 1512 makes the term superfluous in conduct even when a court, agency, or congressional light of the express intent requirements in the statute.34 proceeding was not yet pending, or where the govern- The 11th Circuit disagreed with the Third Circuit, ment might face substantial evidentiary burdens in reasoning that such a definition did not make “cor- proving the defendant’s knowledge of such a pending ruptly” superfluous, because one could still persuade proceeding. another with intent to hinder an investigation without doing so corruptly, for example, through constitutionally To the extent the government will be required to protected speech.35 prove the defendant attempted to have a third party violate a legal duty in connection with the obstructive The courts that have considered this issue in light of the conduct, rather than just acted with improper purpose, specific phrasing of Section 1512 agree that, for however, the advantages of Section 1512 may prove “corruptly persuade” to have any meaning, there must illusory. A defendant facing obstruction charges be ways in which an individual can “persuade” another under the “corruptly persuades” prong of Section 1512 to engage in one of the listed activities, with the intent should certainly consider arguing that conduct that of hindering an investigation, yet without doing so might well on its face seem to be obstructive — like “corruptly,” and thus without violating the statute.36 directing others to destroy documents — is nonethe- The Third Circuit has concluded that the intent to less insufficient to violate Section 1512 because the hinder the investigation will always yield a conclusion third party who did the shredding had no legal duty that the conduct was “improper,” and therefore that to maintain the integrity of the documents in the first “corruptly persuades” needs to be understood as place. encompassing the violation of a legal duty.37 The 11th Circuit, on the other hand, argues that, at least where The government’s ability to establish such a legal constitutionally protected speech is concerned, a duty, while by no means insignificant, may be compli-

Reprinted with permission of Andrews Publications © 2002. www.andrewsonline.com. 6 White-Collar Crime Reporter May 2002 cated in instances where document retention policies 10 William H. Jeffress Jr., “The New Federal Witness exist that call for the regular destruction of material. Tampering Statute,” AMERICAN CRIMINAL LAW REVIEW, In such circumstances, at least where there were Summer, 1984. proceedings pending at the time the document de- 11 struction takes place, the government may well want See, e.g., United States v. Frankhauser, 80 F.3d 641, 651- 52 (1st Cir. 1996). to rethink its reliance on Section 1512 in order to avoid the burden of proving the existence of such a 12 18 U.S.C. § 1512 (e)(1) legal duty. 13 18 U.S.C. § 1515(a)(1). Whatever circuit a defendant ends up in, nothing about the “corruptly persuades” language should 14 Frankhauser, 80 F.3d at 652. suggest that destroying documents with the intent to obstruct justice will cause a defendant anything but 15 18 U.S.C. § 1512(e)(2). additional misery in the end. If history is any guide, we have not seen the last of high-profile obstruction- 16 Most courts have held that the omnibus provision of of-justice cases centered around the destruction of Section 1503 continues to prohibit witness tampering, even evidence, and the courts will have ample opportunity after the enactment of Section 1512. See, e.g., United further to develop the contours of the “corruptly States v. Ladum, 141 F.3d at 1338 (collecting cases); but see United States v. Masterpol, 940 F.2d 760, 763 (2d Cir. 1991) persuades” requirement. (holding that Section 1512 replaced that part of Section 1503 that pertained to witnesses). Notes 17 United States v. Brady, 168 F.3d 574, 578-579 (1st Cir. 1999). 1 In fiscal year 2000, for example, arrests for obstruction of justice made up only 0.4 percent of arrests for all federal 18 United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. offenses. Kathleen Maguire and Ann L. Pastore, BUREAU 1988) (“The specific intent required for obstruction of OF JUSTICE STATISTICS SOURCEBOOK OF CRIMINAL JUSTICE justice under sections 1503 and 1505 is that defendant must STATISTICS – 2000, Table 4.35 at 399. have acted ‘corruptly’, i.e., that the act must be done with the purpose of obstructing justice”); see also United 2 United States v. Aguilar, 515 U.S. 593, 599-600 (1995); States v. Brady, 168 F.3d at 578-79 (“In short, to make any United States v. De La Rosa, 171 F.3d 215, 220-221 (5th Cir. sense out of the statute, ‘corruptly’ needs to have some 1999); United States v. Davis, 183 F.3d 231, 241 (3d Cir. content beyond mere knowledge of consequence.... 1999). However, we think it is ordinarily sufficient to satisfy the ‘corruptly’ requirement in the statute — without regard to 3 United States v. Gravely, 840 F.2d 1156, 1160 (4th Cir. other circumstances that might also establish corruption 1988); see also United States v. Ruggiero, 934 F.2d 440, 450 (e.g., offering a bribe) — if the contemnor’s purpose for (2d Cir. 1991). refusing to testify is to prevent the grand jury from locating the criminals.”) 4 United States v. Gravely, 840 F.2d at 1160. 19 United States v. Nieswender, 590 F.2d 1269, 1273 (4th 5 United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991). Cir. 1979) (internal citations omitted) (basing conclusion on “the propriety of inferring specific intent where the 6 See, e.g., Elkan Abramowitz and Barry A. Bohrer, “When disfavored result naturally flows from a wrongful undertak- Document Destruction Becomes Justice Obstruction,” NEW ing.”); United States v. Buffalano, 727 F.2d 50, 54 (2d Cir. YORK LAW JOURNAL, March 5, 2002, at 4. 1989) (same); United States v. Brenson, 104 F.3d 1267, 1277 (11th Cir. 1997) (same). 7 Section 1512(e) specifically states that “an official proceeding need not be pending or about to be instituted 20 United States v. Shotts, 145 F.3d 1289, 1300 (11th Cir. 1998). at the time of the offense.” 21 United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991). 8 See United States v. Ladum, 141 F.3d 1328, 1337 (9th Cir. 1998). 22 Id. at 379. The D.C. Circuit based its decision, in part, on its reading of the language of Section 1505 and its view that 9 Statistics concerning the number of cases filed per year the statute’s prohibitions against obstruction of justice “by under the obstruction of justice statutes can be found on threats” or “by force” “take as their object a natural person” the Federal Justice Statistics Resource Center Web site at and therefore restrict the reach of “corruptly” to actions http://fjsrc.urban.org/noframe/index.html#data. upon someone else. Id. The broader meaning afforded

“corruptly” in Section 1503 was not dispositive, according to 33 Thompson, 76 F.3d at 452; Shotts, 145 F.3d at 1301. the D.C. Circuit, because the language of the first part of Section 1503 prohibiting transitive conduct (which has no 34 The Second Circuit in Thompson did not address this parallel in 1505) made clear that the Omnibus Clause of issue, which was apparently not raised before it, conclud- Section 1503, found later in the statute, was meant to cover ing only that defining corruptly for Section 1512 in the other types of conduct, including conduct where the same manner as it had long been defined in Section 1503 defendant acted alone. Id. at 385. raised no constitutional issue, inasmuch as Section 1503 had long been held to be constitutional. Thompson, 76 23 18 U.S.C. § 1515(b). F.3d at 452.

24 See, e.g., United States v. Hopper, 177 F.3d 824, 830-831 35 Shotts, 145 F.3d at 1300-1301 (constitutionally protected (9th Cir. 1999); United States v. Senffner, 280 F.3d 755, 762 speech does not violate Section 1512(b) even if intended to (7th Cir. 2002); but see United States v. Kanchanalak, 37 hinder an investigation). The 11th Circuit relied on the F.Supp.2d 1, 3-4 (D.D.C. 1999) (suggesting that Section legislative history of Section 1512, and the dissent in the 1515(b) may not alleviate all the vagueness concerns raised Farrell case, to support its view that the intention of the in Poindexter, but finding Section 1505, as defined in 1988 Amendments was that Section 1512 afford the same Section 1515(b), constitutional as to the specific conduct in protections from non-coercive influence that was found in that case). Section 1503. Id. at 1300.

25 United States v. King, 762 F.2d 232, 237 (2d Cir. 1985). 36 See Farrell, 126 F.3d at 489; Id. at 493 (dissent) (“not all actions taken with the intent to hinder or obstruct justice 26 18 U.S.C. § 1515(a)(6). The misleading conduct prohibi- necessarily violate §1503 or §1512”); Shotts, 145 F.3d at tion in Section 1512 prohibits a defendant’s use of decep- 1300-01. tion and subterfuge, such as lies or misleading omissions, to cause a third party to commit the acts enumerated in the 37 See note 29, supra. statute. See King, 762 F.2d at 237. 38 Shotts, 145 F.3d at 1300-01. 27 United States v. Farrell, 126 F.3d 484, 488-489 (3d Cir. 1997) (holding that “corruptly persuades” requires more than 39 See, e.g., United States v. Khatami, 280 F.3d at 913; an improper motive, or the purpose of obstructing justice — United States v. Kislyansky, 126 F.Supp.2d 1076, 1078 (N.D. the defendant must persuade another to violate a legal Ohio 2001). duty); United States v. Davis, 183 F.3d 231, 250 (3d Cir. 1999) (same); see also United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996) (applying violation of legal duty definition); but cf. United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996) (holding that “corruptly persuades” under Section * Richard M. Strassberg is a partner in Goodwin 1512 requires only an improper purpose); United States v. Procter LLP’s litigation department and co-chair Shotts, 145 F.3d 1289, 1300-1301 (11th Cir. 1998) (same). See also United States v.Khatami, 280 F.3d 907, 912 (9th Cir. of its white-collar crime and government investi- 2001) (discussing circuit split without deciding the issue). gations practice. He specializes in white-collar criminal defense, corporate internal investiga- 28 Farrell, 126 F.3d at 489-490 (“[B]ecause the ‘improper tions, corporate regulatory practice, and purposes’ that justify the application of §1512(b) are complex business and financial litigation. already expressly described in the statute, construing ‘corruptly’ to mean merely ‘for an improper purpose’ Roberto M. Braceras is a partner in Goodwin (including those described in the statute) renders the term Procter LLP’s litigation department and a member surplusage”); Davis, 183 F.3d at 249-250 (same). of the firm’s white-collar crime and government 29 Farrell, 126 F.3d at 488; Davis, 183 F.3d at 250 and n.6. investigations practice. He focuses his practice on white-collar criminal defense and complex 30 Farrell, 126 F.3d at 490. commercial and products liability litigation.

31 Id. at 488. The authors would like to thank Cheryl L. Rainville, associate in the litigation department 32 United States v. Thompson, 76 F.3d 442, 452 (2d Cir. at Goodwin Procter LLP, for her contributions 1996); United States v. Shotts, 145 F.3d 1289, 1300-1301 to the article. (11th Cir. 1998).