Protection of Government ProcessesTampering with
Victims, Witnesses, or Informants18 U.S.C. § 1512
Section 1512 of Title 18 constitutes a broad prohibition against
tampering with a witness, victim or informant. It proscribes conduct
to illegitimately affect the presentation of evidence in Federal proceedings
the communication of information to Federal law enforcement officers. It
to proceedings before Congress, executive departments, and administrative
agencies, and to civil and criminal judicial proceedings, including grand
proceedings. See 18 U.S.C. § 1515(a)(1). In addition, the
provides extraterritorial Federal jurisdiction over the offenses created
See 18 U.S.C. § 1512(g); 128 Cong. Rec. H8469 (daily ed. Oct.
1980); H. R. Rep. No. 1369, 96th Cong., 2d Sess. 20-22 (1980).|
The express prohibitions against tampering with witnesses and
contained in former 18 U.S.C. §§ 1503 and 1505, are now in
(b)(1) and (2) of 18 U.S.C. § 1512. (As discussed in this Manual at 1724 and 1727,
the omnibus clauses of these provisions still cover witnesses.) All forms
tampering with informants covered in former 18 U.S.C. § 1510, with the
exception of tampering by means of bribery, are now proscribed by 18 U.S.C.
1512(b)(3). Tampering with informants by means of bribery remains an 18
§ 1510 offense.
Section 1512 augments the prohibitions of the former law in several
important respects. First, section 1512(b)(3) sweeps more broadly than
18 U.S.C. § 1510 and expands the class of informants protected by
law. For example, it protects individuals having information concerning a
violation of a condition of probation, parole, or bail whether or not that
violation constitutes a violation of any other Federal criminal statute.
it protects individuals seeking to provide information to Federal judges or
Federal probation and pretrial services officers.
Section 1512 also includes attempts in its list of prohibited
There is no requirement that the defendants actions have the intended
effect. See, e.g., United States v. Murray, 751 F.2d 1528
Cir.), cert. denied, 474 U.S. 979 (1985); United States v.
796 F.2d 55 (4th Cir. 1986), cert. denied, 479 U.S. 1039 (1987). As
amended by the Criminal Law and Procedure Technical Amendments Act of 1986,
L. 99-646, it is clear that the killing of a witness or attempts to kill a
witness in order to prevent his/her testimony constitutes an act of force
intended to "influence the witness' testimony." See 18 U.S.C.
1512(a). This change was necessitated by one court interpreting former
1512 as not reaching an act of attempted murder that was intended to prevent
witness from testifying. See United States v. Dawlett, 787
771 (1st Cir. 1986).
The section specifically abolishes the pending proceeding
of 18 U.S.C. §§ 1503 and 1505. The provision also eliminates
about the class of individuals protected. Although the former law protected
witnesses, parties, and informants, it was unclear whether that law reached
intimidation of third parties (for example, the spouse of a witness) for the
purpose of intimidating the principal party. Section § 1512 of Title
plainly covers such conduct, for it speaks of conduct directed toward
person." See 128 Cong. Rec. H8203 (daily ed. Sept. 30, 1982).
Section 1512 protects potential as well as actual witnesses. With
addition of the words "any person," it is clear that a witness is "one who
or was expected to know material facts and was expected to testify to them
pending judicial proceedings." United States v. DiSalvo, 631
1398 (E.D. Pa. 1986), aff'd, 826 F.2d 1054 (3d Cir. 1987). Under
1512, an individual retains his/her status as a witness even after
United States v. Wilson, 796 F.2d 55 (4th Cir. 1986), cert.
denied, 479 U.S. 1039 (1987) (protection of witness under § 1512
continues throughout the trial); United States v. Patton, 721 F.2d
(6th Cir. 1983) (witness retains status while defendant's motion for a new
is pending); United States v. Chandler, 604 F.2d 972 (5th Cir. 1979)
(witness retains status while case is pending on direct appeal). Cf.
United States v. Risken, 788 F.2d 1361 (8th Cir.), cert.
479 U.S. 923 (1986) (party was a witness after asserting his Fifth Amendment
privilege and being dismissed from the stand since he could be recalled at
Section 1512 of Title 18 contains two significant additions to the
of tampering barred by Federal law. First, it forbids "misleading conduct,"
defined in 18 U.S.C. § 1515. Such conduct was not covered in those
that had narrowly construed the omnibus clauses of 18 U.S.C.
1505 under the rule of ejusdem generis. See United States v.
Metcalf, 435 F.2d 754 (9th Cir. 1970); United States v. Essex,
F.2d 214 (6th Cir. 1969). see generally, 128 Cong. Rec. H8203 (daily
Sept. 30, 1982). Second, 18 U.S.C. § 1512 makes intentional harassment
misdemeanor. This offense is intended to reach conduct less egregious than
corrupt, threatening or forceful conduct required for a violation of former
U.S.C. §§ 1503 and 1505. Harassing conduct has been defined as
intended to badger, disturb or pester. Wilson, supra.
Despite its coverage, section 1512 was not intended to reach all
of witness tampering. Its coverage is limited to tampering accomplished by
specific means enumerated in the provision. United States v. King,
F.2d 232 (2d Cir. 1985), cert. denied, 475 U.S. 1018 (1986). The
imaginative types of witness tampering as well as forms of tampering defying
enumeration were still prohibited by the omnibus provision of § 1503.
United States v. Lester, 749 F.2d 1288 (9th Cir. 1984).
It is unclear whether 18 U.S.C. § 1512(b)(3) was intended to
the prohibition against obstructing investigations contained in former 18
§ 1510 to include investigations that are not per se criminal in
as an FAA investigation of an aircraft accident, or a Senate committee
investigation of the trucking industry. A comparison of the difference in
phraseology between 18 U.S.C. §§ 1510 and 1512(b)(3), however,
that those differences are differences of style, not substance, and that no
expansion was intended. Section 1510 proscribes interference with "the
communication of information relating to a violation of any criminal statute
the United States . . ." to a (Federal) criminal investigator; 18 U.S.C.
1512(b)(3) proscribes interference with "the communication to a (Federal)
enforcement officer . . . of information relating to the commission or
commission of a Federal offense." There is nothing to indicate that
intended to depart from the generally accepted meaning of "law enforcement"
criminal law enforcement and of "offense" as criminal violation. See
U.S.C. § 1515(4); 128 Cong. Rec. H8203 (daily ed. Sept. 30, 1982).
Accordingly, prosecutions for interference with legislative or
investigations that have not taken on the character of a criminal
should be brought under the omnibus clause of 18 U.S.C. § 1505.
this Manual at 1726.
[cited in USAM 9-69.100]