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Criminal Justice: What does it take to make an obstruction case?

March 7, 2018

criminal-justice-bontWe know all too well by now that making a single false statement to law enforcement is a crime, but what does it take to tip the scale toward “obstruction of justice”?

Under 18 U.S.C. § 1503, a person who corruptly or by threats or force attempts to influence, intimidate or impede the “due administration of justice” (i.e., the performance of law enforcement duties) commits obstruction of justice. The penalty is up to 10 years in prison.

Obstruction of justice is a specific intent crime. It requires proof that an otherwise lawful act was done for an unlawful purpose. A landlord can evict a tenant whom she knows to be selling drugs. But, if the landlord evicts the tenant only after learning that a detective stopped by to ask some questions, it looks suspicious. If it later comes to light that the former tenant (cough, cough) paid a little extra for his rent, the landlord looks guilty. See United States v. Tampas, 493 F.3d 1291, 1300 (11th Cir. 2007) (Conviction affirmed where the defendant requested a subordinate to create a spreadsheet reconciling — inflated — contractor receipts to avoid prosecution for a kickback scheme.) Even under these circumstances, the government must also prove that the defendant’s act(s) materially interfered with legal proceedings. United States v. Aguilar, 515 U.S. 593 (1995).

In the hypothetical, if the landlord “evicts” the tenant and the tenant leaves his stash behind for the police to find, one could argue that the landlord did not materially impede the investigation. In the more common context of witness testimony, courts give considerable deference to evasive and misleading witness statements. See, e.g., U.S. v Bonds, 784 F.3d 582 (9th Cir. 2015). The government has the burden to exhaust other areas of inquiry. However, even if serious questions ultimately remain about the main suspect’s guilt, preventing law enforcement from understanding what happened is obstruction.

If the above represents the more typical government case, let’s look at the atypical, United States v. Lundwall (and Ulrich), 1 F.Supp.2d 149 (S.D.N.Y. 1998).

Lundwall and Ulrich, both executives at a Fortune 500 company, must have been more than a little squeamish about the prospect of responding to discovery requests in a race discrimination class action. They didn’t just withhold the hot docs; they destroyed them. I imagine barstool conversations with their lawyer-friends who indicated that the worst that could possibly happen was that Texaco would take the hit with the dreaded adverse inference jury instruction, ultimately driving the corporation to the settlement table.

Not so fast, said United States Attorney Mary Jo White. (That line could have feigned so much more significance had this gone down a few years later when one James B. Comey was the United States Attorney for the Southern District of New York.)

Spoiler alert: The Court refused to dismiss their indictments in an opinion that all but screams, “C’mon really?”.

Lundwall and Ulrich walked on the obstruction charges, and, of course, Texaco ponied up $176 million to the class. Still, reading the case feels like watching Lundwall get caught cheating on his third grade spelling test. Even a “not guilty” gets the point across sometimes.

And, how fortunate was Ulrich that his last name fell behind Lundwall’s in the alphabet? In the race to the bottom between two boys who were undoubtedly the subject of grade school ridicule, he pulled a hamstring.•

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Jonathan Bont practices in the areas of criminal defense, business litigation and government compliance at Paganelli Law Group. Opinions expressed are those of the author.

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