Protection of Government ProcessesOmnibus Clause
18 U.S.C. § 1503
The omnibus clause, or "catch-all provision" of 18 U.S.C.
§ 1503, provides:|
Whoever . . . corruptly or by threats or force, or by any
letter or communication, influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice, shall be
(guilty of an offense).
The scope of the omnibus clause has been a subject of dispute among the
United States Courts of Appeals. Some courts have taken the position that
clause should be read broadly to include any conduct interfering with the
administration of justice if that conduct was undertaken with a corrupt
United States v. Saget, 991 F.2d 702 (11th Cir.), cert.
U.S. 950 (1993); United States v. Rasheed, 663 F.2d 843 (9th Cir.
cert. denied, sub. nom. Phillips v. United States, 454 U.S.
(1982); United States v. Ogle, 613 F.2d 233 (10th Cir. 1979),
denied, 449 U.S. 825 (1980); United States v. Baker, 611 F.2d 964
Cir. 1979); United States v. Howard, 569 F.2d 1331, 1333-36 (5th
cert. denied, 439 U.S. 834 (1978); United States v. Walasek,
F.2d 676 (3d Cir. 1975); United States v. Cioffi, 493 F.2d 1111 (2d
cert. denied, 419 U.S. 417 (1974). Others have construed the clause
narrowly, holding that the omnibus clause proscribes only conduct identical
similar to the types of conduct described in the earlier two clauses of
1503. United States v. Ryan, 455 F.2d 728 (9th Cir. 1972); United
States v. Essex, 407 F.2d 214 (6th Cir. 1969); Haili v. United
260 F.2d 744, 746 (9th Cir. 1958).
The United States Supreme Court appears to favor a broad reading of
omnibus clause. In United States v. Aguilar, ___ U.S. ___, 115
2357 (1995), the defendant was charged with and convicted of endeavoring to
obstruct and impede a grand jury investigation in violation of section 1503
lying to agents of the Federal Bureau of Investigation (FBI). Although the
Supreme Court affirmed the appellate court's reversal of a conviction under
omnibus clause, its decision did not turn on a narrow reading of the clause.
Instead the Supreme Court focused on the government's failure to show that
defendant knew his actions were likely to affect a judicial proceeding. The
Court observed that making false statements to an investigating agent who
or might not testify before a grand jury was not sufficient to make out a
violation of the omnibus provision of section 1503 since such conduct could
be said to have the "natural and probable effect" of interfering with the
administration of justice. In other words, there was not a sufficient nexus
between the defendant's conduct, i.e., lying to the investigating agents,
grand jury proceeding. Id. See also United States v.
960 F.2d 1391 (9th Cir. 1991).
The omnibus clause of section 1503 "makes an offense of any
endeavor, without regard to the technicalities of the law or to the law of
impossibility." United States v. Neal, 951 F.2d 630, 632 (5th Cir.
United States v. Williams, 874 F.2d 968 (5th Cir. 1989), citing
v. United States, 385 U.S. 323 (1966). The clause was "intended to
endeavors to obstruct justice" and as such "was drafted with an eye to the
variety of corrupt methods by which the proper administration of justice may
impeded or thwarted, a variety limited only by the imagination of the
inclined." United States v. Neal, 951 F.2d at 632.The principal
limitation to the scope of the omnibus clause is the pending judicial
requirement. See this Manual at
Courts have given an equally broad reading to the nearly identical, but less
frequently litigated, omnibus clause of 18 U.S.C. § 1505. See,
United States v. Alo, 439 F.2d 751, 753-54 (2d Cir.), cert.
404 U.S. 850 (1971).
Convictions under the omnibus clause of 18 U.S.C. § 1503 have
based on the following conduct:
Obstruction of justice requires acts designed to thwart some aspect
the government's judicial function. Investigations conducted by the FBI,
Internal Revenue Service or some other governmental agency do not constitute
judicial proceedings. See United States v. Aguilar, supra;
United States v. Tham, 960 F.2d at 1400.
- Endeavoring to suborn perjury. United States v.
Kenny, 973 F.2d 339 (4th Cir. 1992); United States v. Casel, 995
1299 (5th Cir. 1993), cert. denied, sub. nom.
United States, 510 U.S. 1197 (1994); United States v. Tranakos,
F.2d 1225 (10th Cir. 1990); Falk v. United States, 370 F.2d 472 (9th
1966), cert. denied, 387 U.S. 926 (1967).
- Endeavoring to influence a witness not to testify or to make
himself/herself unavailable to testify. United States v. Washington
Power Co., 793 F.2d 1079 (9th Cir. 1986); United States v.
F.2d 823 (7th Cir. 1985); United States v. Harrelson, 754 F.2d 1153
Cir.), cert. denied, 474 U.S. 908 and 1034 (1985); United
v. Partin, 552 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 903
- Giving false denials of knowledge and memory, or evasive answers.
United States v. Langella, 776 F.2d 1078 (2d Cir. 1985), cert.
denied, 475 U.S. 1019 (1986); United States v. Perkins, 748 F.2d
(11th Cir. 1984); United States v. Griffin, 589 F.2d 200 (5th Cir.),
cert. denied, 444 U.S. 825 (1979); United States v. Spalliero,
F. Supp. 417 (C.D. Cal. 1984); or false and evasive testimony, United
v. Cohn, 452 F.2d 881 (2d Cir. 1971), cert. denied, 405 U.S. 975
(1972). False testimony may be a basis for conviction, United States v.
Barfield, 999 F.2d 1520, 1523 (11th Cir. 1991); however, false
standing alone, is not an obstruction of justice. United States v.
Suskind, 965 F.2d 80 (6th Cir. 1992), reh'g granted and vacated,
F.2d 1206, opinion adopted in part on reh'g, 7 F.3d 236, cert.
denied, 510 U.S. 1129, 1136, and 1192 (1994).
- Falsifying a report likely to be submitted to a grand jury.
United States v. Jespersen, 65 F.3d 993 (2d Cir. 1995), cert.
denied, ___ U.S. ___, 116 S.Ct. 1571 (1996); United States v.
22 F.3d 1365, 1368 (6th Cir. 1994); United States v. Shoup, 608 F.2d
(3d Cir. 1979).
- Destroying, altering, or concealing subpoenaed documents.
States v. Ruggiero, 934 F.2d 440, 446 (2d Cir. 1991); United States
McKnight, 779 F.2d 443 (8th Cir. 1986); United States v.
744 F.2d 580 (7th Cir. 1984); United States v. Rasheed, 663 F.2d 843
Cir. 1981), cert. denied, sub. nom. Phillips v.
States, 454 U.S. 1157 (1982); United States v. Faudman, 640 F.2d
(6th Cir. 1981); United States v. Simmons, 591 F.2d 206 (3d Cir.
United States v. Walasek, 527 F.2d 676 (3d Cir. 1975); United
v. Weiss, 491 F.2d 460 (2d Cir.), cert. denied, 419 U.S. 833
- Endeavoring to sell grand jury transcripts. United States v.
Howard, 569 F.2d 1331, 1333-36 (5th Cir.), cert. denied, 439 U.S.
- Offering to sell a guarantee of a jury acquittal to a defense
counsel. United States v. Neiswender, 590 F.2d 1269 (4th Cir.),
denied, 441 U.S. 963 (1979).
- Endeavoring to influence, through a third party, a judge.
States v. Glickman, 604 F.2d 625 (9th Cir. 1979), cert. denied,
U.S. 1080 (1980); United States v. Fasolino, 586 F.2d 939 (2d Cir.
(per curiam), or a juror, United States v. Ogle, 613 F.2d 233 (10th
1979), cert. denied, 449 U.S. 825 (1980).
- Deliberately concealing one's identity thereby preventing a court
from gathering information necessary to exercise its discretion in imposing
sentence. United States v. Plascencia-Orozco, 768 F.2d 1074 (9th
- Obtaining secret grand jury testimony. United States v.
Forman, 71 F.3d 1214, 1220 (6th Cir. 1995); United States v.
991 F.2d 702, 713 (11th Cir.), cert. denied, 510 U.S. 950 (1993);
United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert.
475 U.S. 1142 (1986).
- Submitting false or misleading information to the grand jury.
United States v. Jespersen, supra; United States v.
supra, or the court, United States v. Neal, supra.
- Refusing to testify before the grand jury. United States v.
Banks, 988 F.2d 1106 (11th Cir. 1993).
The passage of the Victim and Witness Protection Act of 1982 (VWPA)
presented the issue of whether the Omnibus clause of 18 U.S.C. § 1503
continued to embrace witness tampering or whether witness tampering was
exclusively by 18 U.S.C. § 1512. Although the VWPA deleted the
witnesses in the main body of the provision, it did not amend the omnibus
Most courts that have addressed this issue construe section 1503 as still
reaching witness tampering. United States v. Maloney, 71 F.3d 645,
(7th Cir. 1995); United States v. Moody, 83 F.3d 1354 (11th Cir.
United States v. Kenny, 973 F.2d 339 (4th Cir. 1992); United
Risken, 899 F.2d 728 (8th Cir. 1990); United States v. Lestee,
F.2d 1288 (9th Cir. 1984); United States v. Wesley, 748 F.2d 962 (5th
1984), cert. denied, 471 U.S. 1130 (1985). But see United
States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991) (defendant's
for witness tampering under section 1503 reversed on ground "congress
affirmatively intended to remove witnesses entirely from the scope of
1503"), quoting United States v. Hernandez, 730 F.2d 895, 898 (2d
Despite the finding of the United States Court of Appeals for the
Second Circuit that the enactment of section 1512 impliedly repealed witness
tampering as an offense under section 1503, there is nothing in the
history expressly indicating that Congress intended to contract the purview
the omnibus clause. See S. Rep. No. 532, 97th Cong., 2d Sess.,
27-29, reprinted in 1982 U.S.C.C.A.N. 2515, 2520-28, 2533-35; 128
Cong.Rec. H8203-05 (daily ed. Sept. 30, 1982) (section-by-section analysis
H.R. 7191); 128 Cong.Rec. H8469 (daily ed. Oct. 1, 1982) (House analysis of
Senate amendments to House-passed bill).
[cited in Criminal Resource Manual 1729; USAM 9-69.100]