1728

Protection of Government Processes—Obstruction of Federal Criminal Investigation—18 U.S.C. § 1510

Section 1510 of Title 18, United States Code, proscribes endeavors to obstruct Federal criminal investigations "by means of bribery." See, e.g., United States v. Schwartz, 924 F.2d 410, 423, n.3, (2d Cir. 1991). Prior to its amendment by the Victim and Witness Protection Act of 1982, the provision also prohibited obstruction of criminal investigations by "misrepresentation, intimidation, or force or threats thereof" as well as retaliation against informants. Obstructions of Federal criminal investigations by all means enumerated in former 18 U.S.C. § 1510 other than bribery are now covered by 18 U.S.C. § 1512(b)(3). Obstructions by intentional harassment, a new misdemeanor, is an 18 U.S.C. § 1512(c) offense. Retaliation against informants is now covered by 18 U.S.C. § 1513. Section 1510 proscribes only endeavors that are "willfully" undertaken and "require(s) proof of a specific intent to obstruct justice." United States v. Carleo, 576 F.2d 846, 849 (10th Cir.), cert. denied, 439 U.S. 850 (1978); see United States v. Lippman, 492 F.2d 314, 317 (6th Cir. 1974), cert. denied, 419 U.S. 1107 (1975). "[T]he defendant [must] have actual knowledge that the intended recipient of the information [is] a federal criminal investigator." Id. at 317; accord United States v. Grande, 620 F.2d 1026, 1036-37 (4th Cir.), cert. denied, 449 U.S. 830, 919 (1980); United States v. Williams, 470 F.2d 1339, 1342 (8th Cir.), cert. denied, 411 U.S. 936 (1973). It is not required that the defendant actually know that information has been or is about to be supplied to a Federal criminal investigator. All that is required is that the defendant reasonably believe that information had been, or would be, supplied. United States v. Leisure, 844 F. 2d 1347, 1364 (8th Cir. 1988); United States v. Kozak, 438 F.2d 1062, 1066 (3d Cir.), cert. denied, 402 U.S. 996 (1971). See United States v. Zemek, 634 F.2d 1159, 1176 (9th Cir. 1980), cert. denied, sub. nom. Carbone v. United States, 450 U.S. 916, 985, and cert. denied, sub. nom. Williams v. United States, 452 U.S. 905 (1981). Neither is it necessary to show that a defendant in fact obstructed justice or prevented a person from communicating to a criminal investigator. United States v. Murray, 751 F.2d 1528, 1534 (9th Cir.), cert. denied, sub. nom. Moore v. United States, 474 U.S. 979 (1985). For the statute to be violated there is no requirement that an investigation be underway. United States v. Leisure, 844 F.2d at 1364. But cf. United States v. Van Engel, 15 F.3d 623, 627 (7th Cir. 1993) (it is unclear whether section 1510 is applicable if no investigation is underway). The requirement is only that there is an obstruction of a communication to a criminal investigator. United States v. Lippman, 492 F.2d at 317. The scienter requirement is satisfied by showing that the defendant had a reasonably founded belief that information had been or was about to be given. United States v. Abrams, 543 F. Supp. 1184 (S.D.N.Y. 1982). Section 1510 applies to behavior occurring prior to and after the commencement of an official proceeding. United States v. Lester, 749 F.2d 1288, 1298-99 (9th Cir. 1984). The fact that the criminal act occurred after the institution of judicial proceedings is immaterial. United States v. Roberts, 638 F.2d 134, 135 (9th Cir.) (offense occurred 18 days after conviction), cert. denied, 452 U.S. 909 (1981). Similarly, it is immaterial that the act was intended to impede the future communication of information to Federal criminal investigators. United States v. Koehler, 544 F.2d 1326, 1329-30 (5th Cir. 1977) (offense occurred subsequent to indictment). The plain language of section 1510 suggests that it should not be used to prosecute a person who gives false or misleading information to a criminal investigator. Section 1510(b) proscribes officers of financial institutions from obstructing a judicial proceeding by notifying another person about the existence of a subpoena for records of that financial institution or about information that has been furnished to a grand jury in response to that subpoena. Section 1510(d) proscribes persons engaged in the business of insurance from obstructing a judicial proceeding by notifying any person about the existence of a subpoena for records of that person engaged in such business or about information that has been furnished to a Federal grand jury in response to that subpoena. [cited in USAM 9-69.100]