Federal Obstruction of Justice Charges: Witness Tampering Defense.

Federal witness-tampering liability under federal obstruction of justice statutes differs depending on the applicable subsection. For example, 18 U.S.C. Section 1503 prohibits “corruptly” endeavoring to influence, obstruct, or impede the “due administration of justice.” Section 1512 prohibits tampering with witnesses, victims, or informants through threats or intimidation, and “corruptly” persuading others to withhold information or testify falsely (among other acts). As the most frequently-charged federal obstruction provisions, these two sections carry different statutory maximums, and prosecution for an alleged offense under Section 1503 requires proof of different elements than an alleged offense under Section 1512.

A key feature of federal witness-tampering and obstruction charges is that charges can be brought before formal criminal charges are filed, or even while grand jury proceedings are under way. An underlying investigation does not need to result in a criminal conviction for an obstruction prosecution to move forward, and, in many cases, it is the charge of obstruction that carries the greatest risk of incarceration.

In general terms, if the government can prove that any communication or conduct “corruptly” impeded the “due administration of justice” in some way that falls within a statute’s purview, the statute’s prohibitions are implicated. However, even if a dispute exists regarding the appropriateness of a particular communication, this does not necessarily mean that the communication constitutes witness tampering. In fact, defense lawyers can and must challenge both the prosecution’s characterization of the communication in question and the evidentiary sufficiency of the government’s case for federal witness tampering.

Which Section 1512 Subsection Matches Threats, Persuasion, Force, or Attempted Killing?

Section 1512 differs from Section 1503 in that it covers conduct that occurs outside of the courtroom, formal proceeding, or “due administration of justice” in a judicial capacity. This includes not only witness tampering, but attempts to prevent a potential witness, victim, or informant from cooperating with federal law enforcement investigations as well. As a result, conduct that can constitute witness tampering and prompt federal charges under Section 1512 includes:

• Threats, physical force, harassment, or corrupt persuasion;
• Attempted killing;
• Killing; and
• Corruptly persuading a witness to provide false testimony or withhold information.

Depending on the means used, and whether those means result in a witness’s injury or death, the maximum sentence for witness tampering under Section 1512 can be as much as 30 years. However, if a defendant succeeds in killing a potential witness in a federal criminal case or killing an informant so that he or she cannot participate in a federal law enforcement investigation, the offense can carry life imprisonment under Section 1512. Corruptly persuading a witness to withhold testimony or to provide false testimony in a federal criminal proceeding is also a federal offense under Section 1512, which carries a twenty-year statutory maximum sentence. Along with attempting to kill someone to prevent their testimony, this is just one of several other forms of witness tampering under Section 1512 that also carry maximum sentences of thirty years (or a combination of thirty years of imprisonment and a five-year period of supervised release).

Other forms of witness tampering that can trigger prosecution under Section 1512 (and carry 20 years’ imprisonment for subsection (b) conduct and 3 years’ imprisonment for intentional harassment under subsection (d)) include intimidating, threatening, or harassing a witness, victim, or informant to prevent them from testifying or to induce them to falsely testify; and persuading a witness, victim, or informant by means of threats or force to withhold testimony, provide false testimony, or otherwise avoid participating in a federal investigation.

How Does Alleged Witness Tampering Differ from Document Obstruction?

Section 1512 also addresses document obstruction and evidence tampering. Specifically, Section 1512(c) separately addresses corrupt destruction or concealment of objects “with the intent to impair the object’s integrity or availability for use in an official proceeding.” While both offenses are under Section 1512, evidence tampering and witness tampering present separate and distinct issues, target different types of evidence, and may trigger federal charges under different statutory provisions. For instance, in contrast to evidence-related obstruction, witness tampering charges are targeted at a witness, potential witness, or informant’s testimony and/or cooperation. Both witness tampering and document obstruction are serious criminal offenses, but they are also distinct offenses. As federal defense lawyers for criminal witnesses and defendants, we rely on the important distinctions between these offenses to formulate effective defense strategies in our clients’ cases.

Evidence tampering charges can also be sought under various other statutory provisions as well, including Section 1519 and Section 1512(c). In cases involving federal document-focused evidence offenses, proving a defendant’s intent is just as important as proving his or her conduct. This includes demonstrating that the defendant had the intent to make an object unavailable for use in an official proceeding. However, in these cases, if the evidence is destroyed as part of a routine document-retention policy or through other routine means, it is not necessarily the case that this falls under federal evidence tampering or document-focused obstruction provisions. When evidence of tampering is not clear-cut, federal prosecutors must still establish each required element of the substantive federal obstruction of justice charge in order to obtain a conviction. When this fails, it will not only protect individuals accused of evidence tampering and witness tampering from federal prosecution, but it will also leave federal prosecutors with a little (if any) ground to pursue a conviction.

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What Proof Can Expose an Intent Problem or Support a Defense?

If you or a loved one is under investigation for tampering with a witness in a federal case, there is plenty of room for a successful defense. For instance, encouraging another individual to testify truthfully is a very important aspect of the federal criminal justice system, and this form of lawful communication should not be automatic grounds for an allegation of witness tampering.

So, what proof will federal prosecutors rely on to allege that you or a loved one committed witness tampering? In many cases, this involves proving the defendant’s intent. In cases involving a defendant’s communications, this means showing that the communication was a threat, coercion, or attempt to corruptly persuade a witness to provide false testimony or to withhold information. Prosecutors will rely on evidence such as:

• Text messages
• Emails
• Recordings
• Social media posts
• Phone records
• Witness testimony

Even if the evidence is purely circumstantial, federal prosecutors can rely on these forms of evidence to convince a jury (or a federal judge in a bench trial) that a defendant committed witness tampering and that his or her actions demonstrated “corrupt intent” as required to obtain a conviction under the federal witness tampering statutes.

So, what can a defense lawyer use to protect a defendant or loved one accused of witness tampering? In cases involving federal witnesses, victims, or informants, a defense lawyer can challenge the prosecution’s characterization of a communication. For instance, he or she can argue that the defendant’s alleged threat was not a threat at all. He or she can also argue that the communications were nothing more than an expression of concern or a request for the witness to remember their experience clearly and be honest in their testimony. Defendants can also argue that the prosecution’s reliance on social media posts and email exchanges, while often a significant part of the evidence, may have removed a statement or communication from its context, leading to an incorrect conclusion about the defendant’s intent to obstruct justice.

Which Obstruction Penalties Apply, and Why Do Statutory Maximums Mislead?

Obstruction of Proceedings Before Departments, Agencies, and Congressional Committees under 18 U.S.C. Section 1505

Section 1505 addresses the “corrupt” obstruction of “the due and proper administration of law” in proceedings before federal departments and agencies, as well as the investigation, oversight, and inquiries conducted by the House and Senate committees of Congress. Section 1505 carries a maximum sentence of five years’ imprisonment and a fine, or eight years’ imprisonment if the offense involves international or domestic terrorism; it does not incorporate Section 1503’s penalties for perjury or obstruction of a federal judicial or grand jury proceeding.

Obstruction of Justice and Obstruction of Federal Audits under 18 U.S.C. Section 1519 and 18 U.S.C. Section 1520

Section 1519 imposes a maximum statutory sentence of twenty years’ imprisonment for the “knowing” obstruction of federal law enforcement investigations. Section 1520 imposes a maximum statutory sentence of ten years’ imprisonment for knowingly and willfully violating the statute’s five-year audit-workpaper retention requirement or related SEC rules.

General Provision of Obstruction of Justice and Obstruction of Justice in Other Criminal Proceedings under 18 U.S.C. Section 1503

Section 1503’s general obstruction provision also carries a ten-year statutory maximum sentence. Section 1503 generally imposes a ten-year statutory maximum sentence and a fine for corruptly influencing, obstructing, or impeding the due administration of justice. Section 1503 also carries a statutory maximum sentence of twenty years’ imprisonment when it relates to obstructing or corruptly persuading a juror, or interfering with a federal law enforcement officer or juror, during a federal judicial or grand jury proceeding.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.