Originally published by Jack Townsend.
The Ninth Circuit, in an en banc decision, just reversed Barry Bonds [Wikiepedia entry here] conviction for obstruction under 18 USC § 1503’s omnibus clause, here, for his grand jury testimony. United States v. Bonds (9th Cir. 4/22/15), here. This is an important decision for tax crimes both for the grand jury context for § 1503 obstruction but also because § 7212(a), here, tax obstruction, has the same omnibus clause. The analysis may further affect other statutory interpretations in the areas of false statements under 18 USC 1001(a), here.
The opinion is a two paragraph per curiam opinion as follows
During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C [the only obstructive statement found by the jury] was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.
A reversal for insufficient evidence implicates defendant’s right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.
That might have been the resolution of the case without further ripples. But some judges choose to ripple further in concurring and dissenting opinions.
Judge Kozinski wrote the first concurring opinion — referred to later by another judge as the principal concurrence — starting with this stark question:
Can a single non-responsive answer by a grand jury witness support a conviction for obstruction of justice under 18 U.S.C. § 1503?
Tax crimes fans will recall that in United States v. Caldwell, 989 F.2d 1056, 1058 (9th Cir. 1993), here, Judge Kozinski asked a similar question as to the defraud / Klein conspiracy:
“We consider whether conspiring to make the government’s job harder is, without more, a federal crime.”
(I have written on this subject at length, with much of what I said inspired by Judge Kozinski’s question and answer in Caldwell. John A. Townsend, Tax Obstruction Crimes: Is Making the IRS’s Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255 (2009), here.)
Judge Kozinski’s analysis echoes his analysis in Caldwell. First, he cites the specific Q&A on which the obstruction conviction was based:
Q: Did Greg[, your trainer,] ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t—we don’t sit around and talk baseball, because he knows I don’t want–don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?
Q: Right.
A: That’s what keeps our friendship. You know, I am sorry, but that—you know, that—I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.
Then, Judge Kozinski offers his view of the law:
Title 18 U.S.C. § 1503(a), which defendant was convicted of violating, provides in relevant part as follows: “Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).” Known as the omnibus clause, this language “was designed to proscribe all manner of corrupt methods of obstructing justice.” United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981). We have held that a defendant “corruptly” obstructs justice if he acts “with the purpose of obstructing justice.” Id.
As should be apparent, section 1503’s coverage is vast. By its literal terms, it applies to all stages of the criminal and civil justice process, not just to conduct in the courtroom but also to trial preparation, discovery and pretrial motions. Indeed, it arguably covers conduct taken in anticipation that a civil or criminal case might be filed, such as tax planning, hiding assets or talking to police. And the text of the omnibus clause, in concert with our definition of corruptly, encompasses any act that a jury might infer was intended to “influence, obstruct, or impede . . . the due administration of justice.” That’s true even if no actual obstruction occurs, because the clause’s use of “endeavors” makes “success . . . irrelevant.” See United States v. Richardson, 676 F.3d 491, 503 (5th Cir. 2012) (internal quotation marks omitted).
Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction. Did a tort plaintiff file a complaint seeking damages far in excess of what the jury ultimately awards? That could be viewed as corruptly endeavoring to “influence . . . the due administration of justice” by seeking to recover more than the claim deserves. So could any of the following behaviors that make up the bread and butter of litigation: filing an answer that denies liability for conduct that is ultimately adjudged wrongful or malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary judgment; seeking a continuance in order to inflict delay on the opposing party; frivolously taking an appeal or petitioning for certiorari—the list is endless. Witnesses would be particularly vulnerable because, as the Supreme Court has noted, “[u]nder the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive.” Bronston v. United States, 409 U.S. 352, 358 (1973).
Lawyers face the most pervasive threat under such a regime. Zealous advocacy sometimes calls for pushing back against an adversary’s just case and casting a despicable client in a favorable light, yet such conduct could be described as “endeavor[ing] to . . . impede . . . the due administration of justice.” Even routine advocacy provides ample occasion for stumbling into the heartland of the omnibus clause’s sweeping coverage. Oral arguments provide a ready example. One need not spend much time in one of our courtrooms to hear lawyers dancing around questions from the bench rather than giving pithy, direct answers. There is, for instance, the ever popular “but that is not this case” retort to a hypothetical, which could be construed as an effort to divert the court and thereby “influence . . . the due administration of justice.”
It is true that any such maneuver would violate section 1503 only if it were done “corruptly.” But it is equally true that we have given “corruptly” such a broad construction that it does not meaningfully cabin the kind of conduct that is subject to prosecution. As noted, we have held that a defendant acts “corruptly,” as that term is used in section 1503, if he does so “with the purpose of obstructing justice.” Rasheed, 663 F.2d at 852. In the examples above, a prosecutor could argue that a complaint was filed corruptly because it was designed to extort a nuisance settlement, or an answer was filed corruptly because its principal purpose was to pressure a needy plaintiff into an unjust settlement, or that the lawyer who parried a judicial hypothetical with “but that is not this case” was endeavoring to distract the court so it would reach a wrong result. That a jury or a judge might not buy such an argument is neither here nor there; a criminal prosecution, even one that results in an acquittal, is a life-wrenching event. Nor does an acquittal wipe clean the suspicion that a guilty defendant got off on a technicality.
We have no doubt that United States Attorneys and their Assistants would use the power to prosecute for such crimes judiciously, but that is not the point. Making everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It also gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass. The perception that prosecutors have such a potent weapon in their arsenal, even if never used, may well dampen the fervor with which lawyers, particularly those representing criminal defendants, will discharge their duties. The amorphous nature of the statute is also at odds with the constitutional requirement that individuals have fair notice as to what conduct may be criminal. See United States v. JDT, 762 F.3d 984, 996 (9th Cir. 2014) (citing Skilling v. United States, 561 U.S. 358, 402–03 (2010)).
Because the statute sweeps so broadly, due process calls for prudential limitations on the government’s power to prosecute under it. Such a limitation already exists in our case law interpreting section 1503: the requirement of materiality. See United States v. Thomas, 612 F.3d 1107, 1128–29 (9th Cir. 2010). Materiality screens out many of the statute’s troubling applications by limiting convictions to those situations where an act “has a natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body.” See Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks omitted); Thomas, 612 F.3d at 1124. Put another way, the government must prove beyond a reasonable doubt that the charged conduct was capable of influencing a decisionmaking person or entity—for example, by causing it to cease its investigation, pursue different avenues of inquiry or reach a different outcome. See United States v. McKenna, 327 F.3d 830, 840 (9th Cir. 2003) (finding statement material because it could have affected the “decision-making process”); Weinstock v. United States, 231 F.2d 699, 703 (D.C. Cir. 1956) (noting that, to be material, a statement “must have some weight in the process of reaching a decision”).
In weighing materiality, we consider “the intrinsic capabilities of the . . . statement itself,” rather than the statement’s actual effect on the decision-maker, see United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998) (internal quotation marks omitted), and we evaluate the statement in “the context in which [it was] made,” United States v. Rigas, 490 F.3d 208, 231 (2d Cir. 2007); see also United States v. McBane, 433 F.3d 344, 352 (3d Cir. 2005); Weinstock, 231 F.2d at 703 (noting that in context, a statement was “rob[bed] . . . of any materiality—any possible influence upon the [decisionmaker] in reaching its decision”).
We start with the self-evident proposition that Statement C, standing alone, did not have the capacity to divert the government from its investigation or influence the grand jury’s decision whether to indict anyone. Here it is again:
That’s what keeps our friendship. You know, I am sorry, but that—you know, that—I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.
The statement says absolutely nothing pertinent to the subject of the grand jury’s investigation. Even when paired with the question that prompted it,
Did Greg ever give you anything that required a syringe to inject yourself with?
Statement C communicates nothing of value or detriment to the investigation. Had the answer been “I’m afraid of needles,” it would have been plausible to infer an unspoken denial, with the actual words serving as an explanation or elaboration. But, as given, the answer did not enlighten, obfuscate, confirm or deny anything within the scope of the question posed.
The most one can say about this statement is that it was non-responsive and thereby impeded the investigation to a small degree by wasting the grand jury’s time and trying the prosecutors’ patience. * * * *
There is more in Judge Kozinski’s opinion, but I think that is the thrust.
I also like the concurring opinion by Judge Smith. Here are some excerpts:
Congress could not have intended § 1503 to be so broadly applied as to reach a single truthful but evasive statement such as Statement C. Our conclusion that Statement C could not have “the natural and probable effect” of impeding the grand jury’s investigative function stems from two sources: (1) the government’s duty to clarify merely misleading or evasive testimony and (2) relevant precedent indicating that the Government must show that truthful but misleading or evasive testimony must amount to a refusal to testify before it is material. Taken together, these two sources lead to the conclusion that a single truthful but evasive or misleading statement cannot satisfy § 1503’s materiality requirement.
The Supreme Court’s decision in Bronston v. United States, 409 U.S. 352 (1973), requires the conclusion that Statement C does not violate § 1503. Although Bronston dealt with a conviction for perjury, the Supreme Court’s language regarding the government’s duty to conduct competent and thorough questioning is illuminating. In short, “[t]he burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Id. at 360. Extending § 1503’s reach to transient evasive or misleading statements would obviate the prosecutor’s duty to thoroughly examine the witness. Id. at 358 (noting that competent cross-examination should be conducted “by counsel alert–as every examiner ought to be–to the incongruity of [the witness’s] unresponsive answer”). It would be contrary to the statute’s purpose to allow the government to permit an evasive or misleading statement to go unchallenged, in the hopes of obtaining an obstruction of justice conviction later. The government is obligated to do all it can to obtain a direct statement in response to its questioning. The truth-seeking function of the grand jury may be impaired by lax questioning as much, if not more than, an inarticulate or wandering answer.
Bronston counsels that, to convict a defendant for violating § 1503, the jury must find more than that the witness uttered an evasive or misleading statement at some point during his testimony—the “natural and probable effect” of a single truthful but evasive or misleading statement is merely to prompt follow-up questions. Given this burden, Statement C did not have the natural or probable effect of interfering with the due administration of justice, because the Government had a duty to clarify any single misleading or evasive statement Bonds made.
The Supreme Court’s materiality standard reinforces Bronston’s core holding: we should not find liability for a single statement that is merely misleading or evasive. The judicially-created materiality requirement is a primary objective limitation on § 1503’s expansive reach. See United States v. Thomas, 612 F.3d 1107, 1128-29 (9th Cir. 2010).
* * * *
Applying the materiality standard a single truthful but evasive or misleading statement can never be material. Our examination of Statement C—a single evasive or misleading statement—reveals why. No rational juror could have found that Statement C amounted to a refusal to testify, such that Bonds’s testimony thwarted the grand jury’s investigative function.
In summary, the “natural and probable effect” of a single true but evasive response to the government’s questioning is not to impede the grand jury but, rather, to prompt follow-up questioning. A statement that “goes off into the cosmos” merely triggers the prosecutor’s duty to pin the witness down and elicit a clear response. Indeed, that is exactly what happened in this case. Faced with a rambling response, the prosecutor restated the same question and elicited a direct, unambiguous answer from Bonds: “No.” No rational juror could conclude that Bonds refused to answer the question; it is plain in the record that Bonds gave his testimony to the grand jury. Further, this is thus not a situation in which a witness testified evasively for so long and with such persistence that the grand jury’s investigation would likely have been thwarted, as would be required for the testimony to be material. Statement C was therefore not material, and Bonds’s conviction must be reversed.
I could go on because there are other opinions and fantastic analysis. (The dissenting opinion uses the baseball three-strike metaphor to call the majority per curiam and principal concurring opinions “out.”) Maybe when I have some time to review the opinions more thoroughly, I will come back with more.
The briefing in the case is as follows:
- Bonds’ Petition for Rehearing en banc, here.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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