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CRM 1500-1999

1722. Protection Of Government Processes -- Pending Proceeding Requirement -- 18 U.S.C. 1503

Generally, a pending judicial proceeding is a prerequisite to prosecution under 18 U.S.C. § 1503 (including the omnibus clause). United 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 (1987); 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); United States v. Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert. denied, 444 U.S. 1020 (1980); United States v. Baker, 494 F.2d 1262, 1265 (6th Cir. 1974); United States v. Smith, 729 F. Supp. 1380 (D.D.C. 1990).

A proceeding is pending once the judicial machinery has been activated. 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 officer, the proceeding was pending because the defendant was in custody and had signed a waiver of her right to trial and sentencing by the court), cert. denied, 473 U.S. 913 (1985). But see United States v. Blohm, 585 F. Supp. 1112 (S.D.N.Y. 1984) (coverage of omnibus clause not limited to situations in which an action is pending; alternatively, action was pending because defendant was appealing the case at the time he committed the obstructive conduct).

The defendant must also have knowledge that his actions are likely to affect the judicial or grand jury proceeding, United States v. Aguilar, ___ U.S. ___, 115 S.Ct. 2357 (1995); United States v. Frankhauser, 80 F.3d 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); but see United States v. Littleton, 76 F.3d 614 (4th Cir. 1996). There 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 Cir. 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); United States v. Ardito, 782 F.2d 358 (2d Cir.), cert. denied, 476 U.S. 1160 (1986).

A grand jury investigation is a pending proceeding. United States 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 the Third Circuit has held that a grand jury proceeding is pending once a "subpoena [has been] issued in furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated presentation of evidence before [a regularly sitting] grand jury." United States v. Walasek, 527 F.2d 676, 678 (3d Cir. 1975). That court further held that a grand jury need not be aware of the issuance of a subpoena in its name or be otherwise involved in the investigation to which the subpoena relates in order for a grand jury proceeding to be pending. United States v. Simmons, 591 F.2d 206, 210 (3d Cir. 1979). It is necessary only that the subpoena meet the Walasek standard. Id. 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 obstructed). But cf. United States v. Ryan, 455 F.2d 728 (9th Cir. 1971) (grand jury 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 pending proceeding requirement with respect to tampering with witnesses and informants. See 18 U.S.C. § 1512(e)(1). Tampering with jurors and court officers, 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 (9th Cir.) (per curiam), cert. denied, 452 U.S. 909 (1981); United States v. Woodmansee, 354 F.2d 235 (2d Cir. 1965) (per curiam); United States v. Verra, 203 F. Supp. 87, 89 (S.D.N.Y. 1962) (18 U.S.C. § 1503); S. Rep. No. 225, 79th Cong., 1st Sess. 1-2, reprinted in 1945 U.S.C.C.A.N. 723-24. H.R.Rep. No. 658, 90th Cong., 1st Sess. 1-3, reprinted in 1967 U.S.C.C.A.N. 1760-65.

[cited in Criminal Resource Manual 1724; Criminal Resource Manual 1730; JM 9-69.100]