Protection of Government ProcessesPending
Requirement18 U.S.C. § 1503
Generally, a pending judicial proceeding is a prerequisite to
prosecution under 18 U.S.C. § 1503 (including the omnibus clause).
States v. Neal, 951 F.2d 630 (5th Cir. 1992); United States v.
Guzzino, 810 F.2d 687 (7th Cir.), cert. denied, 481 U.S. 1030
United States v. Capo, 791 F.2d 1054, 1070 (2d Cir. 1986), reh'g
granted on other grounds, 817 F.2d 947 (2d Cir. 1987) (en banc);
States v. Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert.
444 U.S. 1020 (1980); United States v. Baker, 494 F.2d 1262, 1265
Cir. 1974); United States v. Smith, 729 F. Supp. 1380 (D.D.C. 1990).|
A proceeding is pending once the judicial machinery has been
United States v. Gonzalez-Mares, 752 F.2d 1485 (9th Cir.) (although a
complaint had not been filed at time of the interview with the probation
the proceeding was pending because the defendant was in custody and had
a waiver of her right to trial and sentencing by the court), cert.
473 U.S. 913 (1985). But see United States v. Blohm, 585 F.
1112 (S.D.N.Y. 1984) (coverage of omnibus clause not limited to situations
which an action is pending; alternatively, action was pending because
was appealing the case at the time he committed the obstructive conduct).
The defendant must also have knowledge that his actions are likely
affect the judicial or grand jury proceeding, United States v.
___ U.S. ___, 115 S.Ct. 2357 (1995); United States v. Frankhauser, 80
641 (1st Cir. 1996); United States v. Vesich, 724 F.2d 451 (5th Cir.
1984); United States v. Jackson, 850 F. Supp. 1481 (D. Kan. 1994);
see United States v. Littleton, 76 F.3d 614 (4th Cir. 1996).
is no requirement, however, that the defendant know that the proceedings are
Federal in nature. United States v. Duran, 41 F.3d 540, 544 (9th
1994); United States v. Mullins, 22 F.3d 135, 1369 (6th Cir. 1994);
United States v. Aragon, 983 F.2d 1306, 1310 (4th Cir. 1993);
States v. Ardito, 782 F.2d 358 (2d Cir.), cert. denied, 476 U.S.
A grand jury investigation is a pending proceeding. United
v. Campanale, 518 F.2d 353, 356 (9th Cir. 1975) (per curiam), cert.
denied, 423 U.S. 1050 (1976). The United States Court of Appeals for
Third Circuit has held that a grand jury proceeding is pending once a
[has been] issued in furtherance of an actual grand jury investigation,
secure a presently contemplated presentation of evidence before [a regularly
sitting] grand jury." United States v. Walasek, 527 F.2d 676, 678
Cir. 1975). That court further held that a grand jury need not be aware of
issuance of a subpoena in its name or be otherwise involved in the
to which the subpoena relates in order for a grand jury proceeding to be
United States v. Simmons, 591 F.2d 206, 210 (3d Cir. 1979). It is
necessary only that the subpoena meet the Walasek standard.
Cf. United States v. Ellis, 652 F. Supp. 1451 (S.D. Miss. 1987) (no
pending proceeding when grand jury was impaneled, but no subpoenas had been
issued and grand jury was unaware of drug investigation allegedly
But cf. United States v. Ryan, 455 F.2d 728 (9th Cir. 1971) (grand
subpoenas issued at request of Internal Revenue Service agents to circumvent
problem with administrative subpoenas did not mark beginning of grand jury
proceeding for purpose of pending proceeding requirement).
The Victim and Witness Protection Act of 1982 eliminated the
proceeding requirement with respect to tampering with witnesses and
See 18 U.S.C. § 1512(e)(1). Tampering with jurors and court
however, continues to be subject to the pending proceeding requirement.
For conduct that can be characterized as retaliation, as opposed to
tampering, the pending proceeding requirement is, and always has been,
irrelevant. See United States v. Roberts, 638 F.2d 134, 135
Cir.) (per curiam), cert. denied, 452 U.S. 909 (1981); United
v. Woodmansee, 354 F.2d 235 (2d Cir. 1965) (per curiam); United
Verra, 203 F. Supp. 87, 89 (S.D.N.Y. 1962) (18 U.S.C. § 1503); S.
No. 225, 79th Cong., 1st Sess. 1-2, reprinted in 1945 U.S.C.C.A.N.
H.R.Rep. No. 658, 90th Cong., 1st Sess. 1-3, reprinted in 1967
[cited in Criminal Resource Manual 1724; Criminal Resource Manual 1730; USAM 9-69.100]