UNITED STATES v. AGUILAR
No. 94-270
Supreme Court of the United States
Argued March 20, 1995—Decided June 21, 1995
515 U.S. 593
James A. Feldman argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Dreeben, and Patty Merkamp Stemler.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
A jury convicted United States District Judge Robert Aguilar of one count of illegally disclosing a wiretap in violation of
Many facts remain disputed by the parties. Both parties appear to agree, however, that a motion for postconviction relief filed by one Michael Rudy Tham represents the starting point from which events bearing on this case unfolded. Tham was an officer of the International Brotherhood of Teamsters, and was convicted of embezzling funds from the local affiliate of that organization. In July 1987, he filed a motion under
Independent of the embezzlement conviction, the Federal Bureau of Investigation (FBI) identified Tham as a suspect in an investigation of labor racketeering. On April 20, 1987, the FBI applied for authorization to install a wiretap on Tham‘s business phones. Chapman appeared on the application as a potential interceptee. Chief District Judge Robert Peckham authorized the wiretap. The 30-day wiretap expired by law on May 20, 1987,
Five months after respondent learned that Chapman had been named in a wiretap authorization, he noticed a man observing his home during a visit by Chapman. He alerted his nephew to this fact and conveyed the message (with an intent that his nephew relay the information to Chapman) that Chapman‘s phone was being wiretapped. Respondent apparently believed, in error, both that Chapman‘s phones were tapped in connection with the initial application and that the initial authorization was still in effect. Chief Judge Peckham had in fact authorized another wiretap on Tham‘s phones effective from October 1987 through the period in which respondent made the disclosure, but there is no suggestion in the record that the latter had any specific knowledge of this reauthorization.
At this point, respondent‘s involvement in the two separate Tham matters converged. Two months after the disclo-
On rehearing en banc, the Court of Appeals reversed both convictions for the reason that the conduct in each instance was not covered by the statutory language. 21 F. 3d 1475 (1994). The court concluded that
Section 1503 provides:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or 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 fined not more than $5,000 or imprisoned not more than five years, or both.”
18 U. S. C. § 1503 (emphasis added).
The statute is structured as follows: first it proscribes persons from endeavoring to influence, intimidate, or impede grand or petit jurors or court officers in the discharge of their duties; it then prohibits injuring grand or petit jurors in their person or property because of any verdict or indictment rendered by them; it then prohibits injury of any court officer, commissioner, or similar officer on account of the performance of his official duties; finally, the “Omnibus Clause” serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice. The latter clause, it can be seen, is far more general in scope than the earlier clauses of the statute. Respondent
The first case from this Court construing the predecessor statute to
The Government did not show here that the agents acted as an arm of the grand jury, or indeed that the grand jury had even summoned the testimony of these particular agents. The Government argues that respondent “understood that his false statements would be provided to the grand jury” and that he made the statements with the intent to thwart the grand jury investigation and not just the FBI investigation. Brief for United States 18. The Government supports its argument with a citation to the transcript of the recorded conversation between Aguilar and the FBI agent at the point where Aguilar asks whether he is a target of a grand jury investigation. The agent responded to the question by stating:
“[T]here is a Grand Jury meeting. Convening I guess that‘s the correct word. Um some evidence will be heard I‘m... I‘m sure on this issue.” App. 86.
We think the transcript citation relied upon by the Government would not enable a rational trier of fact to conclude that respondent knew that his false statement would be provided to the grand jury, and that the evidence goes no further than showing that respondent testified falsely to an investigating agent. Such conduct, we believe, falls on the other side of the statutory line from that of one who delivers false documents or testimony to the grand jury itself. Conduct of the latter sort all but assures that the grand jury will consider the material in its deliberations. But what use will be made of false testimony given to an investigating agent who has not been subpoenaed or otherwise directed to appear before the grand jury is far more speculative. We think it cannot be said to have the “natural and probable effect” of interfering with the due administration of justice.
JUSTICE SCALIA criticizes our treatment of the statutory language for reading the word “endeavor” out of it, inasmuch as it excludes defendants who have an evil purpose but use means that would “only unnaturally and improbably be successful.” Post, at 612. This criticism is unwarranted. Our reading of the statute gives the term “endeavor” a useful function to fulfill: It makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some
JUSTICE SCALIA also apparently believes that any act, done with the intent to “obstruct... the due administration of justice,” is sufficient to impose criminal liability. Under the dissent‘s theory, a man could be found guilty under
II
Section 2232(c) prohibits the disclosure of information that a wiretap has been sought or authorized. The statute reads:
“Whoever, having knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization under chapter 119 to intercept a wire, oral, or electronic communication, in order to obstruct, impede, or prevent such interception, gives notice or attempts to give notice of the possible interception to any person shall be fined under this title or imprisoned not more than five years, or both.”
18 U. S. C. § 2232(c) .
This section is much more precisely targeted than is the catchall provision of
Respondent here urges the reasoning accepted by the Court of Appeals. “[T]he purpose of the statute is to prevent interference with ‘possible interception.‘” 21 F. 3d, at 1480. Once a wiretap has expired or been denied, the Ninth Circuit reasoned, there is no ““possible interception” to disclose or attempt to disclose. Ibid. The narrow purpose of the statute is further evidenced by the statute‘s intent requirement, which limits punishable disclosures to those undertaken with the intent to interfere with “such interception‘” of which the defendant “has knowledge.” Ibid. Under the circumstances, the disclosure of an expired wiretap not only fails to violate the terms of the statute, it fails to implicate any interest protected by
But this argument, we think, fails in the face of the statutory language itself. The term “such interception” is part of the intent requirement in the second clause; the defendant must intend to obstruct the interception made pursuant to the application or authorization of which he has the knowledge required by the first clause. The phrase “possible interception” is found in the third clause, which describes the act which offends the statute. A defendant intending to disclose the existence of a pending application would ordinarily have no way of knowing whether the application or authorization had resulted in an interception, and that is doubtless why the third clause uses the term “possible” interception.
The Court of Appeals thought its result justified by its view that the aim of the statute was to prevent interference with “possible” interceptions, and that if an interception was not possible because the wiretap was no longer in place at the time of the disclosure, that interest was not threatened. But the statute is aimed at something more than the interference with interceptions; it is aimed at disclosure of wiretap orders or applications which may lead to interceptions. The offense is complete at the time the notice is given, when it often cannot be known whether any interception will take place.
JUSTICE STEVENS argues that
Finally, respondent urges us to read the statute to exclude disclosures of expired wiretaps because of concern that a broader construction would run counter to the First Amendment. We see no necessity for such a restrictive construction of the statute. It is true that the Government may not generally restrict individuals from disclosing information that lawfully comes into their hands in the absence of a “state interest of the highest order.” Smith v. Daily Mail Publishing Co., 443 U. S. 97, 103 (1979). But the statute here in question does not impose such a restriction generally, but only upon those who disclose wiretap information “in order to obstruct, impede, or prevent” the interception. Nor was the respondent simply a member of the general
Respondent raised below a challenge to the jury instructions, but the Court of Appeals found it unnecessary to decide. We affirm the decision of the Court of Appeals with respect to respondent‘s conviction under
So ordered.
JUSTICE STEVENS, concurring in part and dissenting in part.
Although I agree with the Court‘s disposition of the
When respondent was convicted of disclosing a 30-day wiretap authorization that had expired months before the disclosure, he was convicted of an attempt to do the impossible: interfere with a nonexistent wiretap. Traditionally, the law does not proscribe an attempt unless the defendant‘s intent is accompanied by “a dangerous probability that [the unlawful result] will happen.” Swift & Co. v. United States, 196 U. S. 375, 396 (1905) (Holmes, J.). Whether such a dangerous probability exists, of course, depends ultimately on what result we interpret the statute as having declared unlawful. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.3, pp. 44-45 (1986). In this case, there was no dangerous probability that respondent actually would reveal the existence of a wiretap or wiretap application because none existed to reveal. We should abjure a construction of a criminal statute that leads to criminalizing nothing more than an evil intent accompanied by a harmless act, particularly when, as here, the statutory language does not clearly extend liability so far. Cf. Simpson v. United States, 435 U. S. 6, 14-15 (1978).
Indeed, the text of
The third clause of
The Court‘s attempt to explain the word “possible” as an assurance that the statute will cover interceptions that may or may not result from a pending application, see ante, at 604, is unpersuasive. Because the statute plainly criminalizes disclosures of pending applications, “possible” does not need to do the work the Court assigns it. The phrase “such interception,” already used in the second clause, would do just as well. The function of “possible” must be to place some temporal limitation on potential liability under the statute. Under the Court‘s reasoning, respondent could be found guilty if he had disclosed a 10-year-old application or authorization. The word “possible,” properly understood, would prevent such an absurd result by limiting liability to
As the Court notes in response to this opinion, see ibid., under its reading the third clause serves to define the actus reus element of the crime, just as Congress could have done by replacing the phrase “notice of the possible interception” with the unambiguous phrase “notice of such authorization or application.” That unambiguous language, however, would not achieve the temporal limitation on liability that I believe Congress intended to achieve with the words “possible interception.” The Court appears to acknowledge the need for such a limitation. See ante, at 604-605, n. 3. Rather than recognizing the limitation the statute contains, however, the Court hints that it might in some future case invent one. Limiting liability to the time before the authorizing judge announces the wiretap may well be “plausible,” ibid., but no plausible basis exists for finding that limitation in the words of the statute. A wiser course than judicial legislation, I submit, is simply to adopt a literal, reasonable construction of the text that Congress drafted.
I would affirm the decision of the Court of Appeals in its entirety.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in part and dissenting in part.
I join all but Part I and the last paragraph of Part II of the Court‘s opinion. I would reverse the Court of Appeals, and would uphold respondent‘s conviction, on the count charging violation of
I
The “omnibus clause” of
“Whoever... corruptly or by threats or force, or by any threatening letter or communication, influences, ob-
structs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
This makes criminal not just success in corruptly influencing the due administration of justice, but also the “endeavor” to do so. We have given this latter proscription, which respondent was specifically charged with violating, see App. 106-107, a generous reading: “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.” United States v. Russell, 255 U. S. 138, 143 (1921) (emphasis added) (interpreting substantially identical predecessor statute). Under this reading of the statute, it is even immaterial whether the endeavor to obstruct pending proceedings is possible of accomplishment. In Osborn v. United States, 385 U. S. 323, 333 (1966), we dismissed out of hand the “impossibility” defense of a defendant who had sought to convey a bribe to a prospective juror through an intermediary who was secretly working for the Government. “Whatever continuing validity,” we said, “the doctrine of ‘impossibility‘... may continue to have in the law of criminal attempt, that body of law is inapplicable here.” Ibid. (footnote omitted).1
Even read at its broadest, however,
Today‘s “nexus” requirement sounds like this, but is in reality quite different. Instead of reaffirming that “natural and probable consequence” is one way of establishing intent, it substitutes ““natural and probable effect““” for intent, requiring that factor even when intent to obstruct justice is otherwise clear. See ante, at 599, quoting United States v. Wood, 6 F. 3d 692, 695 (CA10 1993), which in turn quotes United States v. Thomas, 916 F. 2d 647, 651 (CA11 1990).2
The Court does not indicate where its “nexus” requirement is to be found in the words of the statute. Instead, it justifies its holding with the assertion that “[w]e have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given... of what the law intends to do if a certain line is passed.” Ante, at 600 (citation and internal quotation marks omitted). But “exercising restraint in assessing the reach of a federal criminal statute” (which is what the rule of lenity requires, see United States v. Bass, 404 U. S. 336, 347-348 (1971)) is quite different from importing extratextual requirements in order to limit the reach of a federal criminal statute, which is what the Court has done here. By limiting
The Court apparently adds to its “natural and probable effect” requirement the requirement that the defendant know of that natural and probable effect. See ante, at 599 (“[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct“). Separate proof of such knowledge is not, I think, required for the orthodox use of the “natural and probable effect” rule discussed in Pettibone: Where the defendant intentionally commits a wrongful act that in fact has the “natural and probable consequence” of obstructing justice, “the unintended wrong may derive its character from the wrong that was intended.” 148 U. S., at 207. Or, as we would put the point in modern times, the jury is entitled to presume that a person intends the natural and probable consequences of his acts.
While inquiry into the state of the defendant‘s knowledge seems quite superfluous to the Court‘s opinion (since the act performed did not have the requisite “natural and probable effect” anyway), it is necessary to my disposition of the case. As I have said, I think an act committed with intent to obstruct is all that matters; and what one can fairly be thought to have intended depends in part upon what one can fairly be thought to have known. The critical point of knowledge at issue, in my view, is not whether “respondent knew that his false statement would be provided to the grand jury,” ante, at 601 (emphasis added) (a heightened burden imposed by the Court‘s knowledge-of-natural-and-probable-effect requirement), but rather whether respondent knew—or indeed, even erroneously believed—that his false statement might be provided to the grand jury (which is all the knowledge needed to support the conclusion that the purpose of his lie was to mislead the jury). Applying the familiar standard of Jackson v. Virginia, 443 U. S. 307 (1979), to the proper question, I find that a rational juror could readily
Recorded conversations established that respondent knew a grand jury had been convened, App. 47; that he had been told he was a target of its investigation, id., at 68; and that he feared he would be unable to explain his actions if he were subpoenaed to testify, id., at 51. Respondent himself testified that, at least at the conclusion of the interview, it was his “impression” that his statements to the FBI agents would be reported to the grand jury. 9 Tr. 1360 (Aug. 14, 1990). The evidence further established that respondent made false statements to the FBI agents that minimized his involvement in the matters the grand jury was investigating. See App. 73, 76, 81, 83-84, 86. Viewing this evidence in the light most favorable to the Government, I am simply unable to conclude that no rational trier of fact could have found beyond a reasonable doubt that respondent lied specifically because he thought the agents might convey what he said to the grand jury—which suffices to constitute a corrupt endeavor to impede the due administration of justice. In fact, I think it would be hard for a juror to conclude otherwise.
III
Since I find against respondent on the
Respondent next contends that because Congress in 1982 enacted a different statute,
Finally, respondent posits that the phrase “‘corruptly... endeavors to influence, obstruct, or impede’ may be unconstitutionally vague,” in that it fails to provide sufficient notice that lying to potential grand jury witnesses in an effort to thwart a grand jury investigation is proscribed. Brief for Respondent 22, n. 13. Statutory language need not be colloquial, however, and the term “corruptly” in criminal laws has a longstanding and well-accepted meaning. It denotes “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others. ... It includes bribery but is more comprehensive; because an act may be corruptly done though the advantage to be derived from it be not offered by another.” United States v. Ogle, 613 F. 2d 233, 238 (CA10), cert. denied, 449 U. S. 825 (1980). See also Ballentine‘s Law Dictionary 276 (3d ed. 1969); Black‘s Law Dictionary 345 (6th ed. 1990). As the District Court here instructed the jury:
“An act is done corruptly if it‘s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or
expectation of either financial gain or other benefit to oneself or a benefit of another person.” App. 117.
Moreover, in the context of obstructing jury proceedings, any claim of ignorance of wrongdoing is incredible. Acts specifically intended to “influence, obstruct, or impede, the due administration of justice” are obviously wrongful, just as they are necessarily “corrupt.” See Ogle, supra, at 239; United States v. North, 910 F. 2d 843, 941 (CADC) (Silberman, J., concurring in part and dissenting in part), modified, 920 F. 2d 940 (1990); United States v. Reeves, 752 F. 2d 995, 999 (CA5), cert. denied, 474 U. S. 834 (1985).
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The “nexus” requirement that the Court today engrafts into