Obstruction of Justice in Federal Cases

Obstruction charges are often the most serious charges in a federal indictment that did not begin as an obstruction investigation.

Federal obstruction of justice statutes address a wide range of conduct designed to impede, influence, or corrupt the administration of justice. The most significant provisions are 18 U.S.C. 1503, which prohibits corrupt interference with pending judicial proceedings; 18 U.S.C. 1512, which prohibits tampering with witnesses, victims, or informants; and 18 U.S.C. 1519, which prohibits the destruction, alteration, or falsification of documents in connection with any federal investigation or proceeding. Each provision carries substantial penalties and reaches conduct that may occur long before any formal proceeding has been initiated.

Document Destruction Under Section 1519

Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002 in the immediate aftermath of the Enron collapse, when document destruction during an ongoing investigation became a matter of significant public attention. The statute prohibits knowingly altering, destroying, mutilating, concealing, covering up, falsifying, or making a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States, or in relation to or contemplation of any such matter.

The phrase in contemplation of any such matter is the provision’s most significant reach. A defendant who destroys documents in anticipation of a potential federal investigation, before any investigation has been formally initiated and before any subpoena or other judicial process has been issued, has potentially violated Section 1519 if the destruction was motivated by the intent to prevent those documents from reaching federal authorities. The statute does not require a pending proceeding. It requires only that the defendant contemplated a federal matter when the destruction occurred.

Witness Tampering Under Section 1512

Section 1512 prohibits knowingly using intimidation, threatening, or corruptly persuading another person, or attempting to do so, with intent to influence, delay, or prevent the testimony of any person in an official proceeding. The statute also prohibits causing or inducing any person to destroy or alter a record with intent to impair its availability for use in an official proceeding, and prohibits harassment of another person with intent to hinder, delay, impede, or prevent their communication to a law enforcement officer or judge.

The corruptly persuading language is the provision that most frequently appears in cases involving defendants who communicated with potential witnesses during the pendency of an investigation. A defendant who told a potential witness what to say, suggested that a witness’s memory might be faulty in a particular area, or coordinated accounts with co-defendants in a manner designed to present a false narrative to investigators has potentially engaged in corrupt persuasion within the statute’s scope.

Obstruction charges added to a fraud indictment have specific sentencing consequences: the guidelines impose an upward adjustment for obstruction that eliminates the acceptance of responsibility reduction and adds two offense levels. The practical effect is that the defendant who obstructs an investigation and then pleads guilty faces a significantly higher guidelines range than the defendant who did not obstruct. The obstruction did not help. It added to the exposure it was intended to reduce.

The Martha Stewart Problem

The pattern that produces obstruction charges in cases that did not begin as obstruction investigations is well established: a person becomes aware of an investigation, makes false statements to investigators or destroys documents to limit the government’s view of the underlying conduct, and then faces charges for the obstruction in addition to, or sometimes instead of, charges for the underlying conduct.

In several of the more prominent obstruction prosecutions of the past two decades, the obstruction charge was more easily established than the underlying offense and carried comparable penalties. A defendant who might have successfully contested the underlying charges became, through their obstructive conduct, a significantly more difficult case to defend. The obstruction provided the government with unambiguous evidence of consciousness of guilt and, in some cases, with a charge whose elements were simpler to establish than those of the substantive offense the defendant was attempting to conceal.

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Prevention as the Primary Strategy

The most effective response to obstruction exposure is prevention. A person who becomes aware of a federal investigation and who retains counsel immediately receives advice about document preservation, the prohibition on witness communications, and the limits of permissible engagement with the investigation. That advice, received before any obstructive conduct occurs, is the advice that most reliably prevents obstruction charges from being added to a matter that would otherwise have been limited to the underlying offense.

Obstruction charges that have already accrued require a defense strategy that addresses both the obstruction counts and their sentencing consequences. The attorney who receives a client after obstructive conduct has occurred is working with a more constrained set of options than the one retained before it. The interval between the investigation’s first signal and the decision to retain counsel is the interval in which obstruction exposure is created or avoided.