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1737

Civil Action to Enjoin the Obstruction of Justice -- 18 U.S.C. § 1514

The Victim and Witness Protection Act of 1982 created a Federal civil cause of action authorizing a United States District Court to restrain the "harassment" of crime victims and witnesses or to prevent and restrain existing or imminent violations of 18 U.S.C. §§ 1512 (excluding those consisting of misleading conduct) and 1513. This amendment, which is codified at 18 U.S.C. § 1514, defines "harassment" as "a course of conduct directed at a specific person that causes substantial emotional distress. . .and serves no legitimate purpose." 18 U.S.C. § 1514(c). See United States v. Cofield, 11 F.3d 413, 418, n.6 (4th Cir. 1993), cert. denied, 510 U.S. 1140 (1994); Shepherd v. American Broadcasting Companies, Inc., 151 F.R.D. 194, 204 (D.C. Cir. 1993), rev'd on other grounds, 62 F.3d 1469 (D.C. Cir. 1995); United States v. Tison, 780 F.2d 1569 (11th Cir. 1986) (it was harassing conduct for a party to intimidate another into not providing accurate information to Federal law enforcement officials and to file a civil lawsuit in order to obtain information not discoverable in a pending criminal proceeding). A government attorney is responsible for bringing such an action. Shepherd, 151 F.R.D. at 204.

Section 1514 sets out the manner in which an attorney for the government may request an ex parte request for a temporary restraining order (TRO) to prevent the harassment of a witness in both criminal and civil matters involving the Federal government. Shepard, 151 F.R.D. 194 at 204. A court may provide two forms of equitable relief: a TRO or a protective order. A TRO may be sought and may be issued without notice to the adverse party if it is shown that notice should not be given and that the government has "a reasonable probability" of prevailing on the merits. The standard of proof for a TRO is described as "reasonable grounds." United States v. Stewart, 872 F.2d 957, 962 (10th Cir. 1989). The life of a TRO cannot exceed 10 days, unless good cause to prolong the order is shown before its expiration, in which case a district judge may extend the order for up to 10 days or for a longer period agreed to by the adverse party. In contrast, a protective order must be preceded by an adversary hearing, and the standard of proof for the government is "preponderance of the evidence." The life of a protective order cannot exceed three years, but a second protective order may be sought during the last 90 days of the first.

On its face, section 1514 appears to limit the scope of equitable relief permitted since it makes express provision only for TROs and protective orders "prohibiting harassment of a victim or witness in a federal criminal case." Since "'harassment' means a course of conduct directed at a specific person that. . .causes substantial emotional distress in such person," it could be argued that section 1514 does not comprehend third-party harassment such as the intimidation of a witness' friend for the purpose of dissuading the witness from testifying at a trial. Although the statute is ambiguous on this point, it is clear that the statute does not cover the harassment of jurors and officers of the court.For the legislative history of 18 U.S.C. § 1514, see S. Rep. No. 532, 97th Cong., 2d Sess. 27-29, reprinted in 1982 U.S.C.C.A.N. 2515, 2533-35; and 128 Cong.Rec. H8204-05 (daily ed. Sept. 30, 1982).

[cited in USAM 9-69.100]