The omnibus clause, or "catch-all provision" of 18 U.S.C. § 1503, provides:
Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be (guilty of an offense).
The scope of the omnibus clause has been a subject of dispute among the United States Courts of Appeals. Some courts have taken the position that the clause should be read broadly to include any conduct interfering with the fair administration of justice if that conduct was undertaken with a corrupt motive. United States v. Saget, 991 F.2d 702 (11th Cir.), cert. denied, 510 U.S. 950 (1993); United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981), cert. denied, sub. nom. Phillips v. United States, 454 U.S. 1157 (1982); United States v. Ogle, 613 F.2d 233 (10th Cir. 1979), cert. denied, 449 U.S. 825 (1980); United States v. Baker, 611 F.2d 964 (4th Cir. 1979); United States v. Howard, 569 F.2d 1331, 1333-36 (5th Cir.), cert. denied, 439 U.S. 834 (1978); United States v. Walasek, 527 F.2d 676 (3d Cir. 1975); United States v. Cioffi, 493 F.2d 1111 (2d Cir.), cert. denied, 419 U.S. 417 (1974). Others have construed the clause more narrowly, holding that the omnibus clause proscribes only conduct identical or similar to the types of conduct described in the earlier two clauses of section 1503. United States v. Ryan, 455 F.2d 728 (9th Cir. 1972); United States v. Essex, 407 F.2d 214 (6th Cir. 1969); Haili v. United States, 260 F.2d 744, 746 (9th Cir. 1958).
The United States Supreme Court appears to favor a broad reading of the omnibus clause. In United States v. Aguilar, ___ U.S. ___, 115 S.Ct. 2357 (1995), the defendant was charged with and convicted of endeavoring to obstruct and impede a grand jury investigation in violation of section 1503 by lying to agents of the Federal Bureau of Investigation (FBI). Although the Supreme Court affirmed the appellate court's reversal of a conviction under the omnibus clause, its decision did not turn on a narrow reading of the clause. Instead the Supreme Court focused on the government's failure to show that the defendant knew his actions were likely to affect a judicial proceeding. The Court observed that making false statements to an investigating agent who might or might not testify before a grand jury was not sufficient to make out a violation of the omnibus provision of section 1503 since such conduct could not be said to have the "natural and probable effect" of interfering with the due administration of justice. In other words, there was not a sufficient nexus between the defendant's conduct, i.e., lying to the investigating agents, and the grand jury proceeding. Id. See also United States v. Tham, 960 F.2d 1391 (9th Cir. 1991).
The omnibus clause of section 1503 "makes an offense of any proscribed endeavor, without regard to the technicalities of the law or to the law of impossibility." United States v. Neal, 951 F.2d 630, 632 (5th Cir. 1992); United States v. Williams, 874 F.2d 968 (5th Cir. 1989), citing Osborn v. United States, 385 U.S. 323 (1966). The clause was "intended to cover all endeavors to obstruct justice" and as such "was drafted with an eye to the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined." United States v. Neal, 951 F.2d at 632.The principal limitation to the scope of the omnibus clause is the pending judicial proceeding requirement. See this Manual at 1722. Courts have given an equally broad reading to the nearly identical, but less frequently litigated, omnibus clause of 18 U.S.C. § 1505. See, e.g., United States v. Alo, 439 F.2d 751, 753-54 (2d Cir.), cert. denied, 404 U.S. 850 (1971).
Convictions under the omnibus clause of 18 U.S.C. § 1503 have been based on the following conduct:
- Endeavoring to suborn perjury. United States v. Kenny, 973 F.2d 339 (4th Cir. 1992); United States v. Casel, 995 F.2d 1299 (5th Cir. 1993), cert. denied, sub. nom. Jackson v. United States, 510 U.S. 1197 (1994); United States v. Tranakos, 911 F.2d 1225 (10th Cir. 1990); Falk v. United States, 370 F.2d 472 (9th Cir. 1966), cert. denied, 387 U.S. 926 (1967).
- Endeavoring to influence a witness not to testify or to make himself/herself unavailable to testify. United States v. Washington Water Power Co., 793 F.2d 1079 (9th Cir. 1986); United States v. Arnold, 773 F.2d 823 (7th Cir. 1985); United States v. Harrelson, 754 F.2d 1153 (5th Cir.), cert. denied, 474 U.S. 908 and 1034 (1985); United States v. Partin, 552 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 903 (1977).
- Giving false denials of knowledge and memory, or evasive answers. United States v. Langella, 776 F.2d 1078 (2d Cir. 1985), cert. denied, 475 U.S. 1019 (1986); United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984); United States v. Griffin, 589 F.2d 200 (5th Cir.), cert. denied, 444 U.S. 825 (1979); United States v. Spalliero, 602 F. Supp. 417 (C.D. Cal. 1984); or false and evasive testimony, United States v. Cohn, 452 F.2d 881 (2d Cir. 1971), cert. denied, 405 U.S. 975 (1972). False testimony may be a basis for conviction, United States v. Barfield, 999 F.2d 1520, 1523 (11th Cir. 1991); however, false testimony, standing alone, is not an obstruction of justice. United States v. Suskind, 965 F.2d 80 (6th Cir. 1992), reh'g granted and vacated, 975 F.2d 1206, opinion adopted in part on reh'g, 7 F.3d 236, cert. denied, 510 U.S. 1129, 1136, and 1192 (1994).
- Falsifying a report likely to be submitted to a grand jury. United States v. Jespersen, 65 F.3d 993 (2d Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1571 (1996); United States v. Mullins, 22 F.3d 1365, 1368 (6th Cir. 1994); United States v. Shoup, 608 F.2d 950 (3d Cir. 1979).
- Destroying, altering, or concealing subpoenaed documents. United States v. Ruggiero, 934 F.2d 440, 446 (2d Cir. 1991); United States v. McKnight, 779 F.2d 443 (8th Cir. 1986); United States v. Brimberry, 744 F.2d 580 (7th Cir. 1984); United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981), cert. denied, sub. nom. Phillips v. United States, 454 U.S. 1157 (1982); United States v. Faudman, 640 F.2d 20 (6th Cir. 1981); United States v. Simmons, 591 F.2d 206 (3d Cir. 1979); United States v. Walasek, 527 F.2d 676 (3d Cir. 1975); United States v. Weiss, 491 F.2d 460 (2d Cir.), cert. denied, 419 U.S. 833 (1974).
- Endeavoring to sell grand jury transcripts. United States v. Howard, 569 F.2d 1331, 1333-36 (5th Cir.), cert. denied, 439 U.S. 834 (1978).
- Offering to sell a guarantee of a jury acquittal to a defense counsel. United States v. Neiswender, 590 F.2d 1269 (4th Cir.), cert. denied, 441 U.S. 963 (1979).
- Endeavoring to influence, through a third party, a judge. United States v. Glickman, 604 F.2d 625 (9th Cir. 1979), cert. denied, 444 U.S. 1080 (1980); United States v. Fasolino, 586 F.2d 939 (2d Cir. 1978) (per curiam), or a juror, United States v. Ogle, 613 F.2d 233 (10th Cir. 1979), cert. denied, 449 U.S. 825 (1980).
- Deliberately concealing one's identity thereby preventing a court from gathering information necessary to exercise its discretion in imposing a sentence. United States v. Plascencia-Orozco, 768 F.2d 1074 (9th Cir. 1985).
- Obtaining secret grand jury testimony. United States v. Forman, 71 F.3d 1214, 1220 (6th Cir. 1995); United States v. Saget, 991 F.2d 702, 713 (11th Cir.), cert. denied, 510 U.S. 950 (1993); United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986).
- Submitting false or misleading information to the grand jury. United States v. Jespersen, supra; United States v. Mullins, supra, or the court, United States v. Neal, supra.
- Refusing to testify before the grand jury. United States v. Banks, 988 F.2d 1106 (11th Cir. 1993).
Obstruction of justice requires acts designed to thwart some aspect of the government's judicial function. Investigations conducted by the FBI, Internal Revenue Service or some other governmental agency do not constitute judicial proceedings. See United States v. Aguilar, supra; United States v. Tham, 960 F.2d at 1400.
The passage of the Victim and Witness Protection Act of 1982 (VWPA) presented the issue of whether the Omnibus clause of 18 U.S.C. § 1503 continued to embrace witness tampering or whether witness tampering was covered exclusively by 18 U.S.C. § 1512. Although the VWPA deleted the reference to witnesses in the main body of the provision, it did not amend the omnibus clause. Most courts that have addressed this issue construe section 1503 as still reaching witness tampering. United States v. Maloney, 71 F.3d 645, 659 (7th Cir. 1995); United States v. Moody, 83 F.3d 1354 (11th Cir. 1992); United States v. Kenny, 973 F.2d 339 (4th Cir. 1992); United States v. Risken, 899 F.2d 728 (8th Cir. 1990); United States v. Lestee, 749 F.2d 1288 (9th Cir. 1984); United States v. Wesley, 748 F.2d 962 (5th Cir. 1984), cert. denied, 471 U.S. 1130 (1985). But see United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991) (defendant's conviction for witness tampering under section 1503 reversed on ground "congress affirmatively intended to remove witnesses entirely from the scope of [section] 1503"), quoting United States v. Hernandez, 730 F.2d 895, 898 (2d Cir. 1984).
Despite the finding of the United States Court of Appeals for the Second Circuit that the enactment of section 1512 impliedly repealed witness tampering as an offense under section 1503, there is nothing in the legislative history expressly indicating that Congress intended to contract the purview of the omnibus clause. See S. Rep. No. 532, 97th Cong., 2d Sess., 14-22, 27-29, reprinted in 1982 U.S.C.C.A.N. 2515, 2520-28, 2533-35; 128 Cong.Rec. H8203-05 (daily ed. Sept. 30, 1982) (section-by-section analysis of H.R. 7191); 128 Cong.Rec. H8469 (daily ed. Oct. 1, 1982) (House analysis of Senate amendments to House-passed bill).