Concurrence Opinion
concurring:
Can a single non-responsive answer by a grand jury witness support a conviction for obstruction of justice under 18 U.S.C. § 1503?
I
Defendant, who was then a professional baseball player, was summoned before a grand jury and questioned for nearly three hours about his suspected use of steroids. He was subsequently charged with four counts of making false statements and one count of obstruction of justice, all based on his grand jury testimony. The jury con
The jury instructions identified seven of defendant’s statements that the government alleged obstructed justice. The jury, however, found only one statement obstructive. That statement was referred to as Statement C at trial and is italicized in the passage below:
Q: Did Greg[, your trainer,]' ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re ' Mends, but I don’t — we don’t sit around and talk baseball, because he knows I don’t want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good Mends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?
Q: Right.
A: That’s what keeps our friendship. You know, I am sorry, but that— you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. '
Defendant was again asked about inject-able steroids immediately following this exchange and a few other times during his testimony. He provided direct responses to the follow-up questions. For example, he was asked whether he ever “injected [him]self with anything that Greg ... gave [him].” He responded “I’m not that talented, no.” The government bеlieved that those answers were false but, as noted, 'the jury failed to convict defendant on the false statement counts.
The district court rejected defendant’s post-verdict motion for acquittal on the obstruction count and a three-judge panel affirmed. United States v. Bonds,
II
A. Title 18 U.S.C. § 1503(a), which defendant was convicted of violating, 'provides in relevant part as follows: “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 punished as provided in subsection (b).” Known as the omnibus clause, this language “was designed to proscribe all manner of corrupt methods of obstructing justice.” United States v. Rasheed,
As should be apparent, section 1503’s coverage is vast. By its literal terms, it applies to all stages of the criminal and civil justice process, not just to conduct in the courtroom but also to trial preparation, discovery and pretrial motions. Indeed, it arguably covers conduct taken in anticipation that a civil or criminal case might be filed, such as tax planning, hiding assets or talking to police. And the text of the omnibus clause, in concert with our definition of corruptly, encompasses any act that a jury might infer was intended to “influence, obstruct, or impede ... the due administration of justice.” That’s true even if no actual obstruction occurs, because the clause’s use of “endeavors” makes “success
Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction. Did a tort plaintiff file a complaint seeking damages far in excess of what the jury ultimately awards? That could be viewed as corruptly endeavoring to “influence ... the due administration of justice” by seeking to recover more than the claim deserves. So could any of the following behaviors that make up the bread and butter of litigation: filing an answer that denies liability for conduct that is ultimately adjudged wrongful or malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary judgment; seeking a continuance in order to inflict delay on the opposing party; frivolously taking an appeal or petitioning for certiorari — the list is endless. Witnesses would be particularly vulnerable because, as the Supreme Court has noted, “[u]nder the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive.” Bronston v. United States,
Lawyers face the most pervasive threat under such a regime. Zealous advocacy sometimes calls for pushing back against an adversary’s just case and casting a despicable client in a favorable light, yet such conduct could be described as “endeavoring] to ... impede ... the due administration of justice.” Even routine advocacy provides ample occasion for stumbling into the heartland of the omnibus clause’s sweeping coverage. Oral arguments provide a ready example. One need not spend much time in one of our courtrooms to hear lawyers dancing around questions from the bench rather than giving pithy, direct answers. There is, for instance, the ever popular “but that is not this case” retort to a hypothetical, which could be construed as an effort to divert the court and thereby “influence ... the due administration of justice.”
It is true that any such maneuver would violate section 1503 only if it were done “corruptly.” But it is equally true that we have given “corruptly” such a broad cоnstruction that it does not meaningfully cabin the kind of conduct that is subject to prosecution. As noted, we have held that a defendant acts “corruptly,” as that term is used in section 1503, if he does so “with the purpose of obstructing justice.” Rasheed,
We have no doubt that United States Attorneys and their Assistants would use the power to prosecute for such crimes judiciously, but that is not the point. Making everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It also gives prosecutors the immense and unreviewable
B. Because the statute sweeps so broadly, due process calls for prudential limitations on the government’s power to prosecute under it. Such a limitation already exists in our case law interpreting section 1503: the requirement of materiality. See United States v. Thomas,
In weighing materiality, we consider “the intrinsic capabilities of the ... statement itself,” rather than the statement’s actual effect on the decisionmaker, see United States v. Serv. Deli Inc.,
We start with the self-evident proposition that Statement C, standing alone, did not have the capacity to divert the government from its investigation or influence the grand jury’s decision whether to indict anyone. Here it is again:
That’s what keeps our Mendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.
The statement says absolutеly nothing pertinent to the subject of the grand jury’s investigation. Even when paired with the question that prompted it,
Did Greg ever give you anything that required a syringe to inject yourself with?
Statement C communicates nothing of value or detriment to the investigation. Had the answer been “I’m afraid of needles,” it would have been plausible to infer an unspoken denial, with the actual words serving as an explanation or elaboration. But, as given, the answer did not enlighten,
The most one can say about this statement is that it was non-responsive and thereby impeded the investigation to a small degree by wasting the grand jury’s time and trying the prosecutors’ patience. But real-life witness examinations, unlike those in movies and on television, invariably are littered with non-responsive and irrelevant answers. This happens when the speaker doesn’t understand the question, begins to talk before thinking (lawyers do this with surprising frequency), wants to avoid giving a direct answer (ditto), or is temporizing. Courtrooms are pressure-laden environments and a certain number of non-responsive or irrelevant statements can be expected as part of the give-and-take of courtroom discourse. Because some non-responsive answers are among the road hazards of witness examination, any one such statement is not, standing alone, “capable of influencing ... the decision of [a] decisionmaking body.” See Thomas,
This is true even if, as the government now argues, Statement C is literally false. An irrelevant or wholly non-responsive answer says nothing germane to the subject of the investigation, whether it’s true or false. For example, if a witness is asked, “Do you own a gun?” it makes no difference whether he answers “The sky is blue” or “The sky is green.” That the second statement is false makes it no more likely to impede the investigation than the first.
Statemеnt C does not, however, stand alone. It was a small portion of a much longer examination, and we must look at the record as a whole to determine whether a rational trier of fact could have found the statement capable of influencing the grand jury’s investigation, in light of defendant’s entire grand jury testimony. If, for example, a witness engages in a pattern of irrelevant statements, or launches into lengthy disquisitions that are clearly designed to waste time and preclude the questioner from continuing his examination, the jury could find that the witness’s behavior was capable of having some sway.
On careful review of the record, we find insufficient evidence to render Statement C material. In conducting this review, we are mindful that we must give the jury the benefit of the doubt and draw all reasonable inferences in favor of its verdict. See Jackson v. Virginia,
The government charged a total of seven statements, only one of which the jury found to be obstructive. Two of these statements (including Statement C) appear to be wholly irrelevant — verbal detours with no bearing on the proceedings. One statement is “I don’t know,” followed by a brief explanation for the lack of knowledge. The rest are direct answers that the government claimed were false, all concerning whether defendant’s trainer had provided or injected him with steroids. In the context of three hours of grand jury testimony, these six additional statements are insufficient to render the otherwise innocuous Statement C material. If this were enough to establish materiality, few witnesses or lawyers would be safe from prosecution.
Concurrence Opinion
concurring:
I agree that no reasonable juror could have found Bonds guilty of violating 18 U.S.C. § 1503.
Section 1503(a) punishes those who “corruptly ... influence, obstruct ], or impede[], or endeavor[] to influence, obstruct, or impede, the due administration of justice.”
1.
Congress could not have intended § 1503 to be so broadly applied as to reach a single truthful but evasive statement
The Supreme Court’s decision in Bronston v. United States,
Bronston counsels that, to convict a defendant for violating § 1503, the jury must find more than that the witness uttered an evasive or misleading statement at some point during his testimony — the “natural and probable effect” of a single truthful but evasive or misleading statement is merely to prompt follow-up questions. Given this burden, Statement C did not have the natural or probable effect of interfering with the due administration of justice, because the Government had a duty to clarify any single misleading or evasive statement Bonds madе.
2.
The Supreme Court’s materiality standard reinforces Bronston’s core . holding: we should not find liability for a single statement that is merely misleading or evasive. The judicially-created materiality requirement is a primary objective limitation on § 1503’s expansive reach. See United States v. Thomas,
Evasive or misleading statements are different from false statements. Instead of providing the tribunal with bad information, information that can be evaluated for its capability to influence, a misleading or evasive statement is meant to divert or slow the truth-seeking function in the first instance; it does not so much influence an investigation as divert.it by depriving the question of its force. In this sense, offering evasive or misleading testimony is closely analogous to the destruction of evidence. See United States v. Rasheed,
The Fifth Circuit’s explanation of the materiality standard in United States v. Griffin is particularly persuasive precedent. A false, misleading, or evasive statement may be material, taken in the context of the entire examination, when it amounts to “a flat refusal to testify.” United States v. Griffin,
Applying the materiality standard a single truthful but evasive or misleading statement can never be material. Our examination ,of Statement C — a single evasive or misleading statement — reveals why. No rational juror could have found that Statement C amounted to a refusal to testify, such that Bonds’s testimony thwarted the grand jury’s investigative function.
In summary, the “natural and probable effect” of a single true but evasive response to the government’s questioning is not to impede the grand jury but, rather, to prompt follow-up questioning. A statement that “goes off into the cosmos” merely triggers the prosecutor’s duty to pin the witness down and elicit a clear response. Indeed, that is exactly what happened in this case. Faced with a rambling response, the prosecutor restated the same question and elicited a direct, unambiguous answer from Bonds: -“No.” No rational juror could conclude that Bonds refused to answer the question; it is plain in the record that Bonds gave his testimony to
Notes
. . The Government asserts that, despite the position it argued to the jury, the evidence was sufficient to concludе that Statement C was literally false. The Government will not be allowed to change its position on appeal. See McCormick v. United States,
. We need not accept Bonds's invitation to reassess the reach of § 1503. Doing so would require us to overturn the weight of Ninth Circuit precedent applying § 1503 to in-court testimony. See United States v. Thomas,
. In coming to this conclusion, I do not mean to suggest that the materiality of Statement C turns on whether it was truthful. Because Statement C was obviously non-responsive, it could not have constituted obstruction even if it had been false. A witness who is asked about the location of key documents and responds "I am surprised it is raining” is not liable for obstruction regardless of whether it is raining. But if the same witness knows where the documents are and yet claims never to have heard of them, that potentially could be material and so could amount to obstruction. See United States v. Williams,
Concurrence Opinion
concurring:
Because I concur not only with the per curiam opinion but also with parts of Judge Kozinski’s and Judge N.R. Smith’s opinions (while disagreeing with other parts), I offer my separate views regarding what is in a fact a very simple case, as well as my thoughts concerning the proper construction of 18 U.S.C. § 1503, the obstruction of justice statute.
I.
My answer to the question with which Judge Kozinski begins his opinion, “Can a single non-responsive answer by a grand jury witness support a conviction for obstruction of justice under 18 U.S.C. § 1503?” is simple: No. My response would be the same regardless of the context in which the answer was given.
I reach the conclusion that Bonds’s Statement C was not material and thus could not (and did not) obstruct justice on different and narrower grounds than does Judge Kozinski. I do not agree, for example, with his opinion’s sweeping statements regarding the scope of the statute or with its intimations that nonresponsive answers that are not later cured by way of direct replies might constitute obstruction of justice. Similarly, I would not suggest that there may be a category of non-responsive or irrelevant answers that could be characterized as evasive or misleading and thus subject to differing treatment from other kinds of nonresponsive answers.
In my opinion, Statement C “cannot be. said to have the ‘natural and probable effect’ of interfering with the due administration of justice.’ ” United States v. Aguilar,
I concur with Judge Kozinski’s opinion as well as Judge N.R. Smith’s insofar as they state that Statement C could not have been material even if it had been false. A non-responsive answer that is false is “no more likely to impede the investigation than” a non-responsive answer that is true. Kozinski Op. at 586; see also N.R. Smith Op. at 588 n. 3. Indeed, even “perjured relevant testimony ... need not necessarily ... obstruct or halt the judicial process.” In re Michael,
Unlike Judge Kozinski, I concur with the part of Judge N.R. Smith’s opinion that would hold that the “natural and probable effect” test articulated in United States v. Aguilar constitutes the proper standard for materiality with respect to § 1503.
The breadth of Judge Kozinski’s opinion, its unwarranted speculation regarding context, and its use of United States v. Thomas,
Many fundamental questions persist regarding the meaning and scope of § 1503, notwithstanding our court’s broad construction of the statute in the past, see generally United States v. Rasheed,
II.
My own view is that § 1503 should not be construed as covering testimony of witnesses at court proceedings. I explain my reading of the statute only briefly in light of what appears to me to be the Supreme Court’s current view of the law — a view that also causes me to refrain from suggesting at this time that we overrule Ninth Circuit cases that construe § 1503 overly broadly, see Rasheed,
The history underlying § 1503 strongly supports the conclusion that in-court testimony is not a subject of criminal sanctions under that statute. The predecessor to § 1503 was originally enacted in 1831 in response to abuse of the contempt power by a federal district judge who had imprisoned a man for publishing a criticism of one of his opinions. Nye v. United States,
When one considers the other criminal statutes available to punish in-court misbehavior by a witness — that is, misconduct during testimony — this “geographical” delineation, id. at 48,
More important, the argument for coverage of such actions under § 1503 hinges entirely on the single word “corruptly.” The other specified means of obstructing justice enumerated in that section — “by threats or force, or by any threatening letter or communication” — when viewed in context dictate the opposite conclusion: “corruptly” does not describe the in-court conduct of a witness, but rather, like those enumerated means, describes the conduct of a third party who seeks to obstruct the proceedings. The specified means necessarily describe the attempts of a third party to affect the judicial proceedings by corrupt means. As Judge W. Fletcher explains, the interpretative canon noscitur a sociis — literally “[i]t is known from its associates” — tells us that “the meaning of questionable or doubtful words or phrasеs in a statute may be ascertained by reference to the meaning of other words or phrases associated with it.” Black’s Law Dictionary 1060 (6th ed.1990). Because obstructing proceedings by “threats or force” plainly refers to the conduct of persons outside of court who seek to obstruct the proceedings and not to the witness who is testifying in court in the proceedings, “corruptly” must similarly be understood as referring to the means used by third parties to influence, obstruct, or impede proceedings, and not to in-court testimony by a witness who may well be the object but not the subject of the corrupt tactics.
Even if § 1503 covered in-court conduct, “corruptly” would, under the noscitur a sociis canon, as well as under any other reasonable means of statutory construction, require a greater magnitude of misconduct than simply giving a false or non-responsive answer to a question. Clearly, a mere lie or evasive answer is not akin to using threats or force to cause another to lie. Indeed, the Supreme Court has on occasion recognized that lies and evasive answers are part and parcel of the process of uncovering the truth through adversarial witness examination. See Bronston,
For the reasons discussed above, I would hope that the Supreme Court would revisit its dictum in Aguilar and would conclude that § 1503 does not cover a witness’s in-court testimony. After all, Congress has enacted criminal statutes other than § 1503 that sufficiently address a witness’s in-court conduct. The problems created by the misuse of § 1503 by overeager prosecutors to punish witnesses for what they say in court are all too evident from the facts of this case. It is time for them to cease using that section as a substitute for vigorous cross-examination or for the criminal statutes that properly apply to in-court testimony.
. See infra p. 591 and note 2.
. Cf. Kozinski Op. at 585 (describing materiality standard as whether conduct "has a natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body”).
. In this respect my approach is somewhat less bold than Judge W. Fletcher’s. I do not believe that we need confront the Aguilar dictum in order to reverse, so, as a prudential matter, I would not rely on the far broader ground discussed in this section of my concurrence. Nevertheless, should it become necessary in a future case to address the Aguilar dictum, I reserve the right to consider further the question of its binding nature.
Concurrence Opinion
concurring in the judgment:
I strongly but respectfully disagree with the rationale advanced by the per curiam opinion and by the principal concurrence. I concur only in the judgment.
The issue before us is thе meaning of the federal obstruction of justice statute, 18 U.S.C. § 1503(a). Section 1503(a) provides, in relevant part:
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 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 punished as provided in subsection (b).
(Emphasis added.) Section 1503(a) applies to obstruction of justice, as defined by the statute, in both criminal and civil proceedings. Section 1503(b) provides punishments of varying severities, depending on the nature of the act. The most lenient punishment is “imprisonment for not more than 10 years, a fine under this title, or both.” Id. § 1503(b)(3).
Bonds was prosecuted under the second, or “omnibus,” clause of § 1503(a), the emphasized portion above. The government and the principal concurrence read the word “corruptly” at the beginning of the clause to refer to a state of mind, meaning “with intent to influence, intimidate, or impede the due administration of justice.” They read the clause as criminalizing even entirely truthful statements, so long as those statements are made with such intent.
In the government’s view, any truthful answer given in the course of civil or criminal litigation, if intended to influence, obstruct, or impede the administration of justice, violates the omnibus clause. At oral argument, the government made terrifyingly clear the result of its reading of the statute. The government contended that the obstruction statute criminalizes a truthful but intentionally evasive or misleading answer to an interrogatory in civil litigation. The government also contended that the statute criminalizes a truthful but intentionally evasive or misleading answer during appellate oral аrgument:
Q: I think it’s a common experience among all of us on the appellate court to ask of the lawyer in front of us in a criminal case that’s come up on appeal: “Counsel, could you please explain to me what happened at trial?” and for the lawyer arguing from the U.S. Attorney’s Office to say, “Your Honor, I was not the trial attorney.” Now, sometimes that’s an evasive answer. They may well know the answer, but it’s true that they weren’t the trial attorney____ Has the lawyer just committed a crime? ... [T]he answer that I just hypothesized was . designed , to put me off the track.... A truthful but evasive answer.
*595 A: I think that would be obstructive, Your Honor.
When asked how many San Francisco lawyers it planned to throw in jail, the government declined to specify.
The principal concurrence agrees with the government’s reading of the statute. But it seeks to limit the scope of its operation, writing, “Because the statute sweeps so broadly, due process calls for prudential limitations on the. government’s power to prosecute under it.” Concurrence at 585. According to the concurrence, “due process” and “prudence” dictate that a truthful but intentionally evasive or misleading statement can be prosecuted under the statute only if it was “material.” Id. at 585. The concurrence defines “material” as “capable of influencing a decisionmaking person or entity.” Id. at 585.
Applying its prudence-based definition of materiality, the principal concurrence tells us that Bonds’s wandering and non-responsive answer was not material and therefore not criminal, even if given with intent to influence, obstruct, or impede. It concludes, “Statement C, standing alone, did not have the capacity to divert the government from its investigation or influence the grand jury’s decision whether to indict anyone.” Id. at 585. The concurrence contrasts Bonds’s answer with an answer that would have been сriminal. Bonds was asked, “Did Greg ever .give you anything that required a syringe to'inject yourself with?” If Bonds had answered “I’m afraid of needles,” the concurrence tells us that he could have been successfully prosecuted. Id. If Bonds had given that answer, “it would have been plausible to infer an unspoken denial, with the actual words serving as an explanation or elaboration.” Id.
The principal concurrence’s “prudential” narrowing of “the government’s power to prosecute” is hardly reassuring. An attorney who provides a truthful but evasive answer to an interrogatory in civil litigation often does so in the hope that his answer will “influence the decisionmaking person” who receives it. If there is a' reasonable chance that the hope will be realized, the attorney is a criminal. An appellate attorney who answers during oral argument, “I was not the trial attorney,” sometimes knows what happened at trial but gives that answer in the hope that the judge will not pursue the matter. This attorney, too, may be a criminal.
I disagree. The omnibus clause of § 1503(a) is not an open-ended provision whose constitutionality we can uphold only by manufacturing a “prudential” limitation on the government’s power to prosecute. Rather, it is a narrowly targeted provision that had a specific meaning when enacted and whose text has remained substantially unchanged for over 180 years. The key to a proper understanding of the statute is the meaning of the word “corruptly.”
I. Meaning of “Corruptly”
As used in § 1503(a), “corruptly” does not describe a state of mind. Rather, it describes a forbidden means of influencing, obstructing, or impeding the due administration of justice. As used in § 1503(a), “corruptly” most likely means “by bribery.” There are two arguments supporting this reading: first, the text of the statute; second, a comparison with 18 U.S.C. § 1621, the federal perjury statute.
A. Text of the Statute
The predecessor to § 1503(a) was enacted in 1831, in reaction to perceived'Overreaching by a federal judge who had held a lawyer in contempt for an out-of-court writing. See Walter Nelles & Carol Weiss
The 1831 statute read, in relevant part: And be it further enacted, That if any person or persons shall, corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall corruptly, or by threats or force, obstruct or impede, or endeavor to obstruct or impede, the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor....
Act of Mar. 2, 1831, ch. 99, 4 Stat. 487, 488 (emphasis added). For convenience, I quote again the .corresponding provisions of the modern § 1503(a):
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, ... in the discharge of his duty ... 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 punished as provided in subsection (b).
18 U.S.C. § 1503(a) (emphasis added). The omnibus clause, highlighted above, is at issue here.
There are three differences between the omnibus clause as originally enacted in 1831 and as it appears today. First, in 1872, Congress enacted a provision that prohibited оbstruction “by threatening letters, or any threatening communications,” in addition to the 1831 prohibitions on obstruction “corruptly” and “by threats or force.” Act of June 10, 1872, ch. 420, 17 Stat. 378, 378. As part of the general revision and codification of the federal criminal code in 1909, Congress simplified the statute by replacing “any threatening letters, or any threatening communications,” with “any threatening letter or communication.” Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088, 1113. Second, the 1831 law prohibited obstructing or impeding the administration of justice. The 1872 statute added-a prohibition against influencing its administration. Act of June 10, 1872, ch. 420, 17 Stat. 378, 378. Third, as part of the 1909 revision, the comma after “corruptly” was dropped, almost certainly inadvertently. Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088, 1113. There had been a comma after the word “corruptly” in both the first and omnibus clauses in the 1831 and 1872 statutes, and a comma was retained after “corruptly” in the first clause of the obstruction statute. See Act of Mar. 2, 1831, ch. 99, 4 Stat. 487, 488; Act of June 10, 1872, ch. 420, 17 Stat. 378, 378; Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088, 1113. No reason was given in 1909 for dropping the comma after the word “corruptly” in the second, omnibus clause.
As written in 1831, the omnibus clause provided two methods, separated by commas, by which a person could improperly “obstruct or impede” the “due administration of justice.” A person could do it “corruptly,” or he could do it “by threats or force.” As written in 1872, the clause provided three such methods, again separated by commas, by which a person could improperly “influence, obstruct, or impede” the “due administration of justice.”
A “commonsensical interpretive principle” is that “words mean what they conveyed to reasonable people at the time they were written.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Text 15-16 (2012). The 1828 American Dictionary of the English Language, published three years before the enactment of the original version of § 1503(a), gave two definitions for corruptly:
1. In a corrupt manner; with corruption; viciously; wickedly; without integrity. We have dealt very corruptly against thee. Nehemiah 1.
2. By bribery. A judgment was obtained corruptly.
A contemporaneous document, as well as an interpretive canon, show that when it wrote the word “corruptly,” Congress was likely using the narrow and specific second definition.
The National Intelligencer, publisher of the Register of Debates and the predecessor to what later became the Congressional Record, reported an action of the House of Representatives on the Senate Bill that became the 1831 statute. It reported that on Wednesday, March 2, 1831, the House amended and then agreed to the Senate Bill punishing “attempts to corrupt or intimidate jurors”:
The Senate’s amendments to the Act declaratory of the powers of the Courts of the United States on the subject of Contempts; adding a second section for punishing all attempts to corrupt or im timidate jurors, & c. was amended on the suggestion of Mr. BUCHANAN, and then agreed to.
Twenty-First Congress, Second Session, Daily National Intelligencer, Mar. 3, 1831 (emphasis added). The reference is to the first clause rather than the omnibus clause of the statute, but there is no reason to believe that “corruptly” had different meanings in the two parallel clauses. The National Intelligencer’s use of the infinitive, “to corrupt,” in connection with the direct object, “jurors,” indicates that the prohibition against acting “corruptly” was a prohibition against a specific act — corrupting, or attempting to corrupt, jurors, and thеreby obstructing or impeding justice. That is, the prohibition against acting “corruptly” was a narrow and specific prohibition against bribing jurors, using the second definition. It was not a broad general prohibition against acting “wickedly” or “viciously” in obstructing or impeding justice.
The text following the word “corruptly” in the omnibus clause of § 1503(a) reinforces the conclusion that it means “by bribery.” In the current version, there are three specific forbidden methods of “influencing, obstructing, or impeding the due administration of justice”: (1) “corruptly,” (2) “by threats or force,” or (3) “by any threatening letter or communication.” In the 1831 version, there were two specific forbidden methods: (1) “corruptly,” or (2) “by threats or force.” Where statutory terms “are susceptible of multiple and wide-ranging meanings ... those meanings are narrowed by the commonsense canon of noscitur a sociis — which counsels that a word is given more precise content by the neighboring words with which it is
The text of the omnibus clause of § 1503(a) is precisely the kind of text to which the canon applies. Several methods of obstructing the administration of justice are listed immediately following the word “corruptly”: “by threats,” by “force,” “by threatening letter,” and by threatening “communication.” These are not states of mind. They are specific methods of obstructing justice. We can read “corruptly” as describing a state of mind. Or we can read it as describing another specific method of “influencing, obstructing, or impeding” the “due ádministration of justice.” The canon of noscitur a sociis, as well as common sense, instruct us to choose the latter.
Read in light of a contemporaneous dictionary meaning of “corruptly,” in light of the contemporaneous report on the bill that became the predecessor to § 1503(a), and in light of the noscitur a sociis canon, I conclude that § 1503(a) forbids individuals from obstructing the administration of justice (1) by bribery, (2) by threats or force, or (3) by any threatening letter or communication.
B. Comparison to Perjury
. A comparison of the federal obstruction of justice statute with the federal perjury statute reinforces the conclusion that “corruptly” means “by bribery.” The obstruction of justice statute prescribes different ranges of punishment depending on the act. The most lenient is “imprisonment for not more than 10 years, a fine under this title, or both.” 18 U.S.C. § 1503(b)(3). The federal perjury statute, by contrast, prescribes only one .range of punishment. It provides that someone found guilty of perjury “shall ... be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. § 1621.
If we accept the principal concurrence’s reading of the word “corruptly,” a person who makes a material truthful statement with the intent to “influence, obstruct, or impede the due administration of justice” may be punished by a term of imprisonment of up to ten years. A person who makes a material untruthful statement with the same intent may be punished by a term of imprisonment of up to only half that. It makes - no sense for Congress to punish a truthful statement more severely than a lie. If, on the other hand, we accept that “corruptly” means “by bribery” in § 1503(a), the disparity in punishment makes perfect sense.
In Bronston v. United States,
The government had charged Brоnston with violating § 1621, the federal perjury statute, based on statements he had made
The Court explained, “[W]e perceive no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert — as every examiner ought to be — to the incongruity of [Bronston]’s unresponsive answer.” Id. at 358,
The Court rejected the very argument that the government makes in the case now before us:
It is no answer to say that here the jury found that [the witness] intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was'intended to mislead'or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether “he does not believe (his answer) to be true.” To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners,, and might well fear having that responsibility tested by a jury under the vague rubric of “intent to mislead” or “perjury by implication.” The seminal modern treatment of the history of the offense concludes that one consideration of policy overshadowed all others during the years when perjury first emerged as a common-law offense: “that the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying.”
Id. at 359,
The government and the principal concurrence brush Bronston aside. That is not so easily done, for the Court’s reasoning is as applicable to this case as to Bronston’s. In either case, “[a] jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner.” Id. at 358,
II. United States v. Aguilar
Supreme Court dictum describing § 1503(a) does not change my conclusion. In United States v. Aguilar,
The Supreme Court reversed the conviction because “[t]he action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority.” Id. at 599,
In dictum, the Court distinguished false statements made to an FBI agent from statements made directly to a grand jury. The Court assumed that such statements made to the grand jury would be covered by the omnibus clause. It wrote that Aguilar’s conduct “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.” Id. at 601,
If I were compelled to treat the Court’s dictum as a controlling statement of law, I would not be able to argue, consistent with the view of the Supreme Court, that the word “corruptly” in § 1503(a) means “by bribery.” But I do not believe I am so compelled. “We do not treat considered dicta from the Supreme Court lightly,” because “it serves as a prophecy of what that Court might hold.” McCalla v. Royal MacCabees Life Ins. Co.,
I do not believe the Court’s dictum in Aguilar was “considered” in the requisite sense. The question whether false statements made directly to the grand jury violate the omnibus clause was not before the Court. In his opposition to certiorari, Aguilar had conceded that, “as the government notes, the courts have routinely applied Section 1503 to false testimony to the grand jury.” Brief in Opposition at 18-19, Aguilar,
No argument was made to the Court in Aguilar about the meaning of “corruptly” in 1831, when the obstruction of justice statute was enacted. Nor was any argument made to the Court about the disparity in sentencing between the perjury statute and the obstruction of justice statute. Had the government sought a conviction under the omnibus clause based on a true but evasive or misleading statement to a grand jury, and had these arguments been presented to the Court, it is not at all clear that the Court would have read the statute as broadly as its dictum suggests.
It is possible that I am wrong and that I am required to regard the Court’s dictum in Aguilar as controlling. I do not believe that this is so, but if it is I encourage the Court to revisit, either in this ease or another, the question of the scope of the omnibus clause of § 1503(a). If the Court does revisit the question, I think it likely— perhaps very likely — that it will conclude, as I do, that the word “corruptly,” as used in § 1503(a), means “by bribery.”
Dissenting Opinion
dissenting:
There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out.
Strike One — The per curiam and concurring opinions second-guess the jury’s verdict rather than deferring to it.
I join the principal concurring opinion in its view that context matters in determining whether sufficient evidence supports the conviction in this case. See Kozinski Concurring Opinion, p. 586. A vital part of that context is the evidence before the jury. After all, it is that evidence we examine to determine whether any reasonable juror could have convicted the defendant. In doing so, we view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia,
Barry Bonds was convicted of one count of obstruction of justice in violation of 18 U.S.C. § 1503. That statute provides for the punishment of “[wjhoever, corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice ...”
Barry Bonds may be called to testify before the grand jury; and
In the judgment of the United States Attorney, the testimony and other information to be obtained from Barry Bonds is necessary to the public interest; and
It is therefore ordered that Barry Bonds, soon as he may be called, shall testify under oath and provide other information, including documents, in this case and in any further ancillary proceedings.
It is further ordered that the testimony and' other information compelled from-Barry Bonds pursuant to this order ... may not be used against him in any criminal case, except a prosecution for perjury, false declaration, or otherwise failing to comply with this order.
The purpose of immunizing a witness in exchange for his. testimony is to ensure that the witness, freed from the specter of prosecution, will provide complete and truthful testimony. See United States v. Thomas,
At trial, Special Agent Novitsky described the BALCO Laboratories investigation primarily involving the distribution of anabolic steroids. One of the principal targets of 'the criminal investigation was Greg Anderson, Bonds’ fitness trainer. According to Agent Novitsky, execution of search warrants at BALCO Laboratories produced a “treasure [trove] of drugs and dоcuments indicating usage and distribution [of anabolic steroids] to elite professional athletes.” Authorities also found “physical evidence in terms of drugs that pertained to ... steroid distribution” following a search of Anderson’s residence. Specifically, samples from Anderson’s residence were revealed to be a “designer anabolic steroid.” Authorities also recovered $60,000 from a safe in Anderson’s residence and a bag of syringes in his vehicle.
It was against this backdrop that Bonds was immunized and brought before the grand jury to testify, with the grand jury process considered a continuation of the investigation. Bonds was not a target of the grand jury. Rather, he and other athletes were expected to testify candidly and truthfully to further the investigation into those who were the targets of the grand jury.
From the inception of this nation’s system of justice, the jury has played an integral role in the administration of justice. See City of Morgantown, W.Va. v. Royal Ins. Co., Ltd.,
When Bonds was asked before the grand jury if Anderson had ever given him anything that required a syringe to inject himself with (a yes or no question), Bonds launched into the following rambling soliloquy:
I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t — we don’t sit around and talk baseball, because he knows I don’t*604 want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business, You know what I mean?
That’s what keeps our friendship. You know, I ’ am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.
This rambling, non-response answered the following unasked questions:
[Question: How many doctors have touched (treated?) you?]
Answer: I’ve only had one doctor touch me. And that’s my only personal doctor.
[Question: Do you and Greg (Anderson) get into each others’ personal lives?]
Answer: Greg, like I said, we don’t get into each others’ personal lives.
[Question: Do you and Anderson get into each others’ professional lives?]
Answer: We’re friends, but I don’t — we don’t sit around and talk baseball, because he knows I don’t want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business.
[Question: What keeps your friendship with Anderson?]
Answer: That’s [not getting into each other’s personal or professional lives] what keeps our friendship.
[Question: Were you a celebrity child?]
Answer: You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with, a famous father. I just don’t get into other people’s business because of my father’s situation, you see.
Despite these extended . responses to unasked questions, Bonds studiously avoided answering the question that was actually asked: “Did [Anderson] ever give you anything that required a syringe to inject yourself with?”
The jury pondered Bonds’ response in conjunction with Agent Novitsky’s testimony that Bonds’ response required the investigators to search for othеr evidence that Anderson provided steroids to Bonds. That evidence included testimony from other athletes who acknowledged receiving steroid injections, and from Steve Hoskins, Bonds’ childhood best friend and personal assistant, who had discussions with Bonds about steroid injections and who heard Bonds complain about pain associated with the injections. Hoskins also witnessed Anderson and Bonds enter a bedroom “a couple of times” at Bonds’ Arizona residence, with Anderson holding a needle that Hoskins believed was for steroid injections. Hoskins also recounted an incident when Anderson refused to inject Bonds and Bonds stated that he would “give it to himself.” Hoskins testified that Bonds’ shoe size increased, his glove size changed, and his body got bigger, heavier and “a lot more muscular.” During Hos-kins’ testimony, an audiotape was played that Hoskins made of Anderson discussing providing steroids to Bonds. Hoskins was growing increasingly concerned about Bonds’ steroid use and wanted Bonds’ father to intervene. Because Anderson and Bonds,denied the use of steroids, Hoskins hoped to use the tape to convince Bonds’ father that Hoskins’ concern was justified.
A former girlfriend of Bonds testified that Bonds revealed to her that a lump on Bonds’ elbow was caused by steroid use. She also observed Anderson and Bonds regularly enter a bedroom in Bonds’ Arizona residence with a satchel, locking the door after them and remaining inside for approximately twenty minutes. At the same time, the former girlfriend noted significant physical changes in Bonds, including a dramatic increase in size, acne on his upper shoulders and back, rapid hair loss, testicular atrophy, and decreased sexual performance. In addition, Bonds became “increasingly aggressive, irritable, agitated, very impatient, almost violent.” The jury was informed by the Chief Science Officer of the United States Anti-Doping Agency that these are typical side effects of anabolic steroid use.
Finally, Kathy Hoskins, sister to Steve Hoskins, testified that she actually witnessed Anderson administer a shot into Bonds’ “bellybutton” with a syringe, “like the Doctor with a syringe in the bellybutton.” According to Kathy Hoskins, Bonds commented that the injection was “a little some.some, when I go on the road, you know we can’t detect it, you can’t catch it.”
After hearing this evidence, the jury was instructed that to convict Bonds of obstructing justice, the government was required to prove beyond a reasonable doubt:
1. The defendant corruptly, that is, for the purpose of obstructing justice,
2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,
3. by knowingly giving material testimony that was intentionally evasive, false or misleading.
The instruction on materiality informed the jury that:
A statement was material if it had a natural tendency to influence or was capable of influencing a decision of the grand jury.
The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify!.] '
So instructed, the jury reasonably found that Bonds’ rambling statement was evasive. Under the sufficiency of evidence standard, we draw all inferences in fayor of the government when determining whether any rational juror could have found that Bonds’ evasive testimony materially impeded the grand jury’s performance of its investigatory function. See Griffin,
Evidence may be sufficiеnt to sustain a conviction under § 1503 even if “it does not exclude every reasonable hypothesis of innocence or is not wholly inconsistent with every conclusion of guilt [because] [a] jury is free to choose among reasonable constructions of the evidence.” United States v. Perkins,
The principal concurring opinion acknowledges that the sufficiency of evidence standard of review is a demanding one, but
As the principal concurring opinion acknowledges, § 1503 sweeps broadly. See Kozinski Concurring Opinion, p. 583.Ap-plying that broad statute to the facts of this case, we must determine whether there was sufficient evidence before the jury that Bonds sought to corruptly impede the work of the grand jury. See id. We are not called upon to determine how far '§ 1503 can be prudentially applied. Nor need we decide whether attorneys at oral argument could be prosecuted for giving evasive answers to questions from members of the oral argument panel. Such a discussion is more akin to resolving a claim that a statute is overbroad, an issue that is not before us in this appeal. In any event, a hypothetical overreach of the statute cannot affect Bonds’ conviction for conduct that falls squarely within the statute. See United States v. Jeter,
The jury necessarily found that Bonds’ evasive testimony was material because it was instructed that it had to make that finding before Bonds could be convicted of violating § 1503. Nevertheless, the principal concurring opinion relies upon the “self-evident proposition” that Bonds’ evasive statement “did not have the capacity to divert the government from its investigation ...” Kozinski Concurring Opinion, p. 585. But this conclusion ignores Agent Novitsky’s testimony and the jury’s finding of fact. At a minimum, the jury’s finding is supported by Agent Novitsky’s testimony that Bonds’ evasive responses diverted and impeded the investigation by requiring the investigators to determine whether Bonds was being injected with steroids unknowingly, and whether Bonds’ inconsistent testimony compromised the testimony of the other witnesses. See Perkins,
Strike Two — The per curiam and concurring opinions disregard precedent that supports upholding the jury’s verdict.
This is not the first time we have considered whether evasive testimony may serve as the basis for an obstruction of justice charge. It may be the first time we have considered the statute as applied to a famous athlete. But that should not be the deciding factor, and there is no other reason to interpret the statute differently in this case.
In United States v. Rasheed,
Other circuits agree. See United States v. Cohn,
Ignoring these cases, in my view, creates an unwarranted circuit split and disregards our own precedent without justification.
Strike Three — The concurring opinions rely on precedent more applicable to perjury than to obstruction of justice.
The principal concurring opinion cites this language from Bronston v. United States,
The defendant in Bronston answered several questions posed during adversarial bankruptcy proceedings concerning whether he or his company had Swiss bank accounts. See id. at 354,
There is a notable statutory distinction between the perjury at issue in Bronston and the obstruction of justice at issue in this case. In Bronston, the Supreme Court expressed its unwillingness to expand the perjury statute’s reach to encompass literally truthful answers beyond the limits established by Congress. See id. at 358,
Whoever — (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury ...
18 U.S.C. § 1621 (emphases added). Importantly, the perjury statute specifically requires that the defendant have knowledge that the statement itself was not true. See id. The perjury statute is much more forgiving in its knowledge requirement than the elements delineated in 18 U.S.C. § 1503 for obstruction of justice. Notably, 18 U.S.C. § 1503 does not contain any comparable requirement of known falsity. Rather, the obstruction of justice statute merely requires that the defendant “endeavor [] to influence, intimidate, or impede any grand or petit juror ...” 18 U.S.C. § 1503(a) (emphasis added). As the Supreme Court has articulated, “the term ‘endeavor’ ... makes cоnduct 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 way....” United States v. Aguilar,
It is questionable whether the “literal truth” underpinnings of Bronston apply
In Bronston, the defendant’s responses were literally truthful based on the specific questions posed. In other words, the questions in Bronston permitted the defendant to exploit the vagaries of the questions while still providing literally truthful answers. In contrast, the government in this case directly and unambiguously inquired of Bonds, “Did Greg ever give you anything that required a syringe to inject yourself with?” Bonds’ answer that he was a celebrity child was literally truthful in only the most attenuated and superficial manner, as it had nothing to do with the question asked.
Application of Bronston’s literal truth analysis guts the obstruction of justice provision prohibiting any attempt to “corruptly ... endeavor to influence ... or impede any grand or petit juror ...” 18 U.S.C. § 1503(a). Equating obstruction of justice with perjury actually superimposes the heightened knowledge requirement contained in the perjury statutе upon the “endeavor to influence or impede” provisions of the obstruction statute. 18 U.S.C. § 1503(a); cf. 18 U.S.C. § 1621(1). Specifically, Bronston’s requirement that an attorney must ask clarifying questions in order to cure potentially perjurious testimony should not be extended to a witness afforded immunity who attempts to obstruct a grand jury investigation through misleading and evasive answers. Bonds was liable for obstruction of justice at the moment he endeavored to influence or impede the grand jury’s investigation with his misleading and evasive answer to the government’s direct and unambiguous question. See Aguilar,
Were a defendant with the requisite intent to lie to a subpoenaed witness who is ultimately not called to testify, or who testifies but does not transmit the defendant’s version of the story, the defendant has endeavored to obstruct, but has not actually obstructed, justice. Under our approach, a jury could find such defendant guilty.
Id. at 602 As the Supreme Court emphasized, “[t]his is not to say that the defendant’s actions need to be successful; an endeavor suffices ...” Id. at 599,
Once Bonds corruptly endeavored to impede the investigatory function of the grand jury, his crime was complete. See Rasheed,
None of the cases cited in the principal concurring opinion support the notion that there is insufficient evidence to sustain an
Final Pitch
Barry Bonds received a grant of immunity in exchange for his truthful and candid testimony before the grand jury. Rather than aiding the grand jury in its investigatory quest, Bonds elected to obstruct the grand jury process by giving evasive testimony. There is sufficient evidence to support his conviction because the jury was instructed that it must find his evasive testimony to be material before rendering a guilty verdict. In my view, the per curiam and concurring opinions impermissibly second-guess the jury verdict,. disregard our precedent, create an unwarranted circuit split and import inapplicable principles from Bronston into the obstruction of justice analysis. I cry foul.
. Apologies to Ernest Lawrence Thayer, Casey at the Bat (1888) ("But there is no joy in Mudville-Mighty Casey has struck out.").
. Bonds’ answer to the government’s question as to whether Anderson “ever gave [him] anything that required a syringe to inject [himself] with’’ was not limited to Bonds’ answer that he was a celebrity child. Although it may be literally true that Bonds was a celebrity child, his answer was also coupled with the statement that he “just didn’t get into other people’s business because of [his] father’s situation ...” To the extent the answer even addressed the government's direct question, it implied that, because he was a celebrity child, Bonds did not interject himself “into other people’s business” and did not receive anything related to steroids from Anderson. The jury could have reasonably concluded that the last part of Bonds’ answer was an attempt to impede the grand jury’s investigation by deflecting the question and evasively implying that, contrary to the evidence presented at trial, he did not know about Anderson's steroid operation because he did not get involved in the business of his friends.
Lead Opinion
Per Curiam Opinion; Concurrence by Judge KOZINSKI; Concurrence by Judge N.R. SMITH; Concurrence by Judge
REINHARDT; Concurrence by Judge W. FLETCHER; Dissent by Judge RAWLINSON
OPINION
During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.
A reversal for insufficient evidence implicates defendant’s right under the Double Jeopardy Clause. See United States v. Preston,
REVERSED.