Obstruction Charges: How Cases Grow a Second Count.

“Obstruction of justice” is an umbrella term under federal law. There is no single “obstruction of justice” charge under Title 18. Instead, several federal statutes address obstruction in different scenarios; these cover, but are not limited to, interfering with judicial proceedings and interfering with agency proceedings or congressional inquiries.

Key Federal Statutes Concerning Obstruction of Justice

Title 18 U.S.C. § 1503

This section, which expressly requires a “federal nexus,” provides broad jurisdiction to the federal government to prosecute conduct that interferes with “the due administration of justice”. This statute is often used to target witnesses, jurors, and others who attempt to interfere with federal courts and federal grand jury investigations.

Title 18 U.S.C. § 1505

This section provides jurisdiction to the federal government to prosecute conduct that interferes with “the due and proper administration of the law” under agency proceedings and congressional inquiries.

Title 18 U.S.C. § 1512

This section applies broadly to corrupt persuasion with the intent to “influence, delay, or prevent the testimony of any person,” to alter or destroy records, documents, or other objects, and to otherwise obstruct an “official proceeding”.

Is a Conviction Required in the Underlying Case?

No. The federal obstruction statutes do not require a conviction (civil or criminal) in the underlying case. The statutes punish “endeavors” (i.e., attempts) to obstruct justice, and failure to complete these “endeavors” will not shield you from liability for a violation of federal law.

• Attempting to destroy evidence is enough to face federal obstruction charges, regardless of whether you are charged under the underlying statute.
• An unsuccessful effort to obstruct can still result in criminal charges, regardless of the outcome of the underlying investigation.

Does Federal Obstruction Require a Case to Already Be Pending?

As discussed, federal obstruction comprises several offenses that apply in different scenarios. Some of these offenses require, but not all of these offenses require, a case or proceeding to be pending at the time of the alleged obstruction. For example:

• Section 1503 requires a “pending judicial proceeding.” With respect to what constitutes a “judicial proceeding,” U.S. District Court Judges for the Southern District of New York have written that federal district court proceedings qualify, and so do federal grand jury proceedings. This suggests that “judicial proceeding” includes federal cases, whether civil or criminal, and federal grand jury investigations.
• Section 1505 requires a “pending proceeding.” Under Section 1505, a “proceeding” includes proceedings that are “pending before any department or agency of the United States,” “before any committee or subcommittee of either House of Congress,” and “before any grand jury or court in the United States.” However, circuits disagree over whether agency investigations qualify as Section 1505 proceedings, although the U.S. Supreme Court has described agency investigations as “proceedings” in the past.
• Section 1512 does not require an official proceeding to be pending. In fact, Section 1512(f)(1) provides that “an official proceeding need not be pending or about to be instituted at the time of the offense.”
• Section 1519 does not require a pending federal proceeding or investigation either. Instead, it requires that the record in question be destroyed while “contemplating” a “matter within the jurisdiction of any department or agency of the United States.” This is a broad federal nexus that captures both administrative investigations and other federal matters.

Could the Lack of Knowledge of a Pending Proceeding Defeat a Charge of Federal Obstruction?

The lack of knowledge of a pending or imminent proceeding would be an important factor in most cases; however, there is a critical difference. In most cases, this could serve to defeat federal obstruction charges. Yet, under Section 1519, the government need only prove that the defendant “contemplated” a federal proceeding. This creates a broad federal nexus that covers destruction of records in contemplation of “a matter within the jurisdiction of any department or agency of the United States.” This means that, even if an investigation did not exist at the time the evidence was destroyed, it could still lead to a criminal prosecution under federal law.

What About an Attempted Obstruction of Justice?

The statutes discussed above all provide for federal jurisdiction over any “endeavor” to obstruct justice. An unsuccessful attempt to destroy evidence or influence a witness is a violation under federal law; and, unlike some other statutes, attempts to commit a crime do not trigger a separate violation under the federal law in these scenarios. In federal obstruction, the “attempt” is the “offense.” This is similar to some other federal crimes, but it is far from common.

What Are Common Punishments for Federal Obstruction of Justice?

The punishments for federal obstruction vary considerably by statute. Section 1503 carries a maximum of 10 years, Section 1505 a maximum of 5 years, and Sections 1512(c) and 1519 maximums of 20 years, and all of them can carry significant fines. All of the statutes discussed above can lead to long-term imprisonment, and they also generally allow for prosecutors to seek additional punishments.

Can Deleting Emails or Documents Be Federal Obstruction of Justice?

The Sarbanes-Oxley Act of 2002 added Section 1519 to Title 18. The government obtained statutory authority to prosecute the alteration or destruction of records in contemplation of any agency investigations or “matters within the jurisdiction of” any department or agency of the United States. Under Section 1519, the government does not have to prove a corrupt intent, and the maximum prison term is twenty years.

The definition of “tangible objects” was clarified in Yates v. United States, 574 U.S. 528 (2015) in which the U.S. Supreme Court construed “tangible objects” to refer to things like records, documents, and other information-preserving devices, or, as the Court described it, “all information-preserving items” that could be used for a proceeding.

More recently, in 2024, the U.S. Supreme Court ruled on the scope of Section 1512(c)(2) in the case of Fischer v. United States. The Court narrowed the definition of obstruction of justice, and, in doing so, held that the statute reaches only conduct that impairs the availability or integrity of records, documents, objects, or other things used in an official proceeding, or an attempt to do so. The Court held that the “impairment of the integrity or availability of these objects” is what triggers a charge of federal obstruction under the statute.

If the government recovers deleted emails or destroys other documents that were supposedly destroyed or altered, it will still be able to use this evidence to support a conviction under Section 1519 and the other relevant federal statutes, if applicable.

Do “Litigation Holds” Apply to Federal Obstruction?

As noted above, the government does not have to prove you were under investigation or that a proceeding was pending for you to face a charge for obstruction. “Litigation holds” apply to both civil and criminal litigation in federal court. A company or organization should put a litigation hold in place if it “reasonably anticipates” litigation. This includes the initiation of a grand jury proceeding. When the government proves that it is reasonably likely you will be called as a witness in a pending proceeding, you will be equally likely to face the imposition of a litigation hold.

What Are the Sentences for Federal Obstruction of Justice?

The sentences for federal obstruction can vary widely. While the relevant statutes provide the maximum prison term the government can seek, sentencing is ultimately up to the judge. In addition to prison, you could also face hundreds of thousands of dollars in fines, probation, and other forms of punishment. If the underlying offense is a conspiracy to commit fraud or another crime, you could face charges for that as well.

Our lawyers can be effective on both ends, as prosecutors and as defense counsel. When the government brings charges for obstruction of justice, you need to be sure that you have representation that fully understands what is at stake. With our extensive experience in federal court, we can aggressively defend you and help you avoid facing prosecution.

Is Lying to an FBI Agent Obstruction of Justice?

Can Lying to an FBI Agent Lead to Federal Obstruction Charges?

The short answer is no, and the answer in most cases is a clear “no.” As discussed in previous sections, an FBI investigation is not, by itself, a “judicial proceeding” under Section 1503, and a standalone FBI interview is not an “official proceeding” under Section 1515(a)(1) of Title 18. Section 1515(a)(1) lists all of the proceedings that qualify:

• Judicial proceedings under Section 1503;
• Congressional hearings;
• Proceedings pending before any department or agency of the United States; and,
• Proceedings pending before a state or federal insurance regulator or examiner.

However, this is not to say that lying to an FBI agent or other federal law enforcement officers is not a crime. In United States v. Aguilar, the U.S. Supreme Court held that lying to an FBI agent who might or might not testify before a grand jury is not, by itself, enough to violate Section 1503. The Court reversed Aguilar's obstruction conviction because the government never showed that the agents were acting as an arm of the grand jury or that Aguilar knew his false statements would be provided to the grand jury. The Court held that, in this case, “the fact that the witness knew that the agent was likely to tell the grand jury the contents of the witness’s statement is enough to constitute consciousness of the likelihood of the outcome of the agent’s inquiry and to show that the witness intended that his statement would obstruct a grand jury’s investigation.” However, the Court also noted that “where the effect of the false statement would be to obstruct the grand jury is too speculative, there is no clear intent.”

Lying and Section 1001

False statements to an FBI agent or other federal law enforcement officers can trigger liability under Section 1001. Unlike Section 1503 or Section 1505, Section 1001 does not require an official proceeding. As a result, false statements can be enough to secure a conviction even if there is no pending investigation. In Brogan v. United States, 522 U.S. 398 (1998), the U.S. Supreme Court rejected the defense that “exculpatory” statements (statements that distance the defendant from responsibility) were not punishable under Section 1001, noting that “the rule is simply that a person may not knowingly make a materially false statement to federal investigators.” Section 1001, as discussed, generally carries a maximum five-year prison sentence.

Perjury and False Statements

Perjury and making false statements are related but separate offenses from obstruction of justice. False statements made under Section 1001 are not necessarily obstructive acts. Perjury is a separate offense that requires the defendant to have taken an oath. While convicted of perjury can trigger a charge for obstruction of justice in some cases, perjury and obstruction are not synonymous.

It is common for defendants to face charges for related offenses, including perjury, false statements, and obstruction of justice. This allows the government to pursue conviction on all applicable charges.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

What Are the Best Defenses to Federal Obstruction Charges?

The obstruction of justice statutes discussed above generally all require the element of wrongful intent. To establish intent, the government will typically seek to prove that the defendant “corruptly” or “knowingly” engaged in a dishonest, malicious, or otherwise improper effort to impede, influence, or obstruct a proceeding. But, as with many federal criminal charges, obstruction cases can provide significant defenses for those who are not fully aware of the full range of obligations and requirements imposed by federal law. With a successful defense, defendants can avoid prosecution and conviction for serious federal criminal offenses.

Defending Against Charges Under Section 1503 and Section 1505

In most cases involving Section 1503 or Section 1505, a successful defense will require an effective attack on the government’s proof of wrongful intent or knowledge. For example, with respect to the destruction of records, in some cases, it might have been accidental. There are also cases involving individuals who destroyed evidence in an attempt to avoid a civil lawsuit or other civil liability, who might have believed that the destruction of the evidence was permitted, good-faith conduct that might negate a finding of “knowingly” or “corruptly” obstructing the grand jury or other proceeding.

In addition, the government will generally need to prove a “relationship” between the allegedly obstructive conduct and the underlying proceeding (e.g., federal court or grand jury proceeding). In United States v. Aguilar, the U.S. Supreme Court held that “the obstructive conduct must be related to the proceeding” in such a way that the conduct would “foreseeably affect the integrity or propriety of the proceeding’s results.” The Court also noted that “this ‘relationship’ has also been described as a nexus in time, causation, and logic. In each case, the term used meant that the alleged obstructive conduct must bear a ‘close relationship to the proceeding.’”

Defending Against Charges Under Section 1512 and Section 1519

Like Section 1503 and Section 1505, Section 1512 and Section 1519 are also most commonly invoked when the defendant destroyed records, impeded witness testimony, or otherwise obstructed justice with an intent to commit a fraud or conceal another crime. With this, too, defendants will have the opportunity to challenge the government’s case with respect to wrongful intent and knowledge.

In particular, under Section 1512(e), there is a recognized “affirmative defense” to criminal liability in cases involving the use of force to attempt to impede a proceeding. Defendants who rely on this statutory affirmative defense must show that “the use of force was solely for a lawful purpose.” With this defense available to them, defendants will have the opportunity to avoid liability, even where the results are similaire to a typical federal obstruction case.

Of course, this is just the beginning. Even in cases where these charges are likely based on evidence that the government lawfully obtained, it can still make sense to challenge the evidence obtained at the grand jury and federal district court. Suppression motions, appeals and appeals, and pre-trial and post-trial motions are all critical for asserting constitutional and statutory defenses in a criminal case.

Can a Lawyer Be Charged with Federal Obstruction of Justice?

Lawyers can face federal obstruction charges. Section 1515(c) provides protection for “lawful, bona fide representation by a lawyer,” but it explicitly does not protect “the facilitation or use of illegal means to influence or impede a federal proceeding.” Consequently, lawyers are subject to liability for engaging in conduct that falls outside their “legitimate representation.” Examples include corruptly coaching a witness, directing a client to delete or destroy evidence, or otherwise facilitating a crime or fraud.

As the federal government’s enforcement efforts intensify in many of these areas, the potential for facing criminal liability exists even for attorneys. While the attorney-client privilege is broad, it does not afford general immunity from the federal obstruction statutes. A lawyer’s status can provide some protection in certain scenarios, but it generally does not serve as a shield against federal criminal liability.

Are Attorney Obligations Protected Under the Obstruction Statutes?

In a federal proceeding, an attorney’s professional obligations generally do not trigger obstruction liability. For example, a lawyer’s obligation to disclose information or to preserve records would, in many cases, not lead to a charge of obstruction of justice. However, this also carries important limitations. For instance, Section 1512(e)’s affirmative defense applies to attorneys as well. Like individual defendants who must affirmatively demonstrate that “the sole purpose” of their actions was “to encourage the witness to testify truthfully,” attorneys must affirmatively establish they are relying on this defense to avoid liability.

Is Attorney-Client Privilege Limited?

Most attorneys believe that all communications with their clients are protected under the attorney-client privilege. While this is true in many cases, there is a recognized “crime-fraud exception.” This exception removed the privilege’s protections when an attorney or client uses communications to further a crime or fraud. In United States v. Graham, the U.S. Supreme Court explicitly included “obstruction of justice” (e.g., witness tampering or destruction of evidence) among the crimes that can trigger this exception. Thus, the crime-fraud exception can apply when an attorney assists a client in trying to get away with another crime, i.e., when an attorney helps a client obstruct a federal grand jury investigation or a federal court proceeding.

How Much Prison Time Does Federal Obstruction of Justice Carry?

Statutory Penalties

The penalties for federal obstruction of justice vary; there is no “standard” five-to-ten-year sentence, and the statutory and guideline penalties vary widely across different scenarios. For example, the “omnibus” clause of Section 1503 imposes a maximum ten-year prison sentence, and Section 1505 typically imposes a five-year maximum. Under Section 1512(b), which involves intimidation, threats, or corrupt persuasion of witnesses to withhold or alter evidence, federal defendants will typically face a twenty-year maximum prison term.

Federal Sentencing Guidelines

In addition to the relevant statutes, there are the Federal Sentencing Guidelines (USSG). As the U.S. Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), the U.S.S.G. are advisory and not mandatory. However, we expect that our clients to face sentencing that closely follows the U.S.S.G., since they are still highly relevant in the sentencing process. Two key provisions of the U.S.S.G. provide examples of this:

• USSG Section 3C1.1 discusses “Obstructing or Impeding the Administration of Justice” as an additional offense. If the evidence shows that the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of a criminal offense,” the offense level should ordinarily be increased by two levels.
• USSG Section 2J1.2 discusses the substantive “Obstructing the Administration of Justice” offense. Here, the “base offense level” is 14. As USSG Section 2J1.2(b)(2) explains, this base offense level can be increased by three levels, “if the offense resulted in substantial interference with the administration of justice.”

The Federal Sentencing Table

Finally, the Federal Sentencing Table translates these offense levels to sentencing ranges. For example, for an individual with zero criminal history points, a base offense level of 14 carries a sentencing range of 15 to 21 months. The sentencing range will increase if the defendant has a criminal history or if the court imposes a sentence enhancement based on a higher offense level.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.