The omnibus clause of 18 U.S.C. § 1505 parallels its counterpart in 18 U.S.C. § 1503 in language and purpose, and most of the law construing the latter is applicable to the former. Generally, a defendant may be found guilty under section 1505 if the government establishes that: (1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending. United States v. Price, 951 F.2d 1028, 1030-31 (9th Cir. 1991); United States v. Sprecher, 783 F. Supp. 133, 163 (S.D.N.Y. 1992).
Like section 1503, the omnibus clause of 18 U.S.C. § 1505 requires a corrupt state of mind. See United States v. Browning, 630 F.2d 694, 700-01 (10th Cir. 1980), cert. denied, 451 U.S. 988 (1981). See generally this Manual at 1723. But see United States v. Poindexter, 951 F.2d 369, 386 (D.C. Cir. 1991), in which the United States Court of Appeals for the District of Columbia reversed Poindexter's convictions under section 1505 because the term "corruptly," as used in this section, was unconstitutionally vague as applied to the defendant's conduct, which included preparing false documents and submitting them to Congress, as well as testifying falsely before Congress. In an apparent response to Poindexter, Congress enacted a clarifying amendment regarding obstructing Congress. Section three of the False Statements Accountability Act of 1996 amended 18 U.S.C. § 1515 by adding a new subsection defining the term "corruptly" as used in section 1505 to mean "acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information." Pub. L. No. 104-292, § 3, 110 Stat. 3459, 3460.
Section 1505 is constrained, like its counterpart in 18 U.S.C. § 1503, by the requirement that there be a pending proceeding. Some courts have applied the pending proceeding requirement in a relaxed manner. United States v. Schwartz, 924 F.2d 410, 423 (2d Cir. 1991); United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991). For example, in United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849 (1970), the Sixth Circuit held that the term "proceeding" is "of broad scope, encompassing both the investigative and adjudicative functions of a department or agency."
Other cases appear to impose a slightly stricter pending proceeding requirement that requires a formal act. See Rice v. United States, 356 F.2d 709, 713, 715 (8th Cir. 1966) (in a case arising under the non-omnibus portion of former section 1505, the court found the requisite proceeding and stressed that the intimidating act followed the filing of unfair labor charges with the Regional Director of the National Labor Relations Board by the individuals who were intimidated).
Investigations by the Internal Revenue Service (IRS) constitute a section 1505 proceeding. See United States v. Lewis, 657 F.2d 44, 45 (4th Cir.) (ploy to frustrate IRS effort to collect delinquent taxes), cert. denied, 454 U.S. 1086 (1981); United States v. Vixie, 532 F.2d 1277, 1278 (9th Cir. 1976) (per curiam) (submission of false document in response to IRS subpoena); United States v. Persico, 520 F. Supp. 96, 101-02 (E.D.N.Y. 1981) (endeavor to bribe IRS agent to influence IRS's criminal investigation of individual's tax liability). Similarly viewed are investigations by the United States Securities and Exchange Commission, United States v. Sprecher, 783 F. Supp. at 164, and the United States Customs Service, United States v. Schwartz, 924 F.2d at 423. However, investigations by the Federal Bureau of Investigation (FBI) are not section 1505 proceedings. United States v. Higgins, 511 F. Supp. 453, 455-56 (W.D. Ky. 1981); see also United States v. Scoratow, 137 F. Supp. 620, 621-22 (W.D. Pa. 1956) (FBI investigation is not a 18 U.S.C. § 1503 "proceeding"). But cf. 18 U.S.C. §§ 1510 and 1512(b)(3), (c)(2).