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1736. Inchoate Obstruction Of Justice Offenses

Several of the obstruction of justice provisions prohibit "endeavors" to obstruct. Section 1503 of Title 18, United States Code, prohibits "endeavors" to tamper with jurors and officers of the court. The omnibus clauses of sections 1503 and 1505 prohibit "endeavors" to obstruct justice as well as actual obstructions of justice. Section 1510 of Title 18, United States Code, prohibits "endeavors" to obstruct criminal investigations through bribery.

Although "endeavor" might be thought of as a synonym for "attempt," the Supreme Court has concluded that "endeavor" is broader than "attempt." United States v. Russell, 255 U.S. 138 (1921). In Russell, the Supreme Court held:

The word of the section is "endeavor," and by using it the section got rid of the technicalities which might be urged as besetting the word "attempt," and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent . . . . The section . . . is not directed at success in corrupting a juror but at the "endeavor" to do so. Experimental approaches to the corruption of a juror are the "endeavor" of the section.

Id. at 143. Accord Osborn v. United States, 385 U.S. 323, 333 (1966). See also United States v. Tedesco, 635 F.2d 902 (1st Cir. 1980) (court rejected defendant's argument that an explicit offer of a bribe or a request for specific testimony was required for an endeavor to influence a witness under section 1503), cert. denied, 452 U.S. 962 (1981); United States v. Fasolino, 586 F.2d 939 (2d Cir. 1978) (defendant's importuning of a third party to approach a Federal judge, whom the third party knew, on a pending sentencing matter constituted an endeavor). see generally United States v. Osborn, 385 U.S. at 332-33; United States v. Lazzerini, 611 F.2d 940, 941-42 (1st Cir. 1979); United States v. Roe, 529 F.2d 629, 631-32 (4th Cir. 1975); United States v. Rosner, 485 F.2d 1213, 1228-29 (2d Cir. 1973), cert. denied, 417 U.S. 950 (1974); United States v. Missler, 414 F.2d 1293, 1306 (4th Cir. 1969), cert. denied, 397 U.S. 913 (1970); Knight v. United States, 310 F.2d 305, 307 (5th Cir. 1962) (per curiam). The legislative history of section 1510 indicates that Congress intended to incorporate this case law into that provision. H.R.Rep. No. 658, 90th Cong., 1st Sess. 3, reprinted in 1967 U.S.C.C.A.N. 1760, 1762.

It follows that an endeavor to obstruct justice need not be successful to be criminal. See, e.g., Osborn, 385 U.S. at 333; United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Thomas, 916 F.2d 647, 651 (11th Cir. 1990); United States v. Barfield, 999 F.2d 1520, 1522 (11th Cir. 1993); United States v. Wood, 6 F.3d 692, 695 (10th Cir. 1993). Accordingly, factual impossibility, which arises when the defendant solicits a third party to obstruct justice and the third party is a government informant, is not a valid defense. See United States v. Osborn, supra and United States v. Rosner, 485 F.2d at 1228-29.

[cited in JM 9-69.100]

Updated January 17, 2020