Case Information
*1 Before ANDERSON and BIRCH, Circuit Judges, and WOODS [*] , Senior District Judge.
BIRCH, Circuit Judge:
These consolidated appeals from convictions of police officers under 18 U.S.C. § 1512(b)(3)
for providing false and misleading information concerning the death of a drug dealer to state
investigators present the issue of whether statements suppressed in a prior civil rights trial pursuant
to
Garrity v. New Jersey,
I. FACTUAL AND PROCEDURAL BACKGROUND
On Friday, December 16, 1988, defendants-appellants Nathaniel Veal, Jr., Andy Watson, Pablo Camacho, and Charlie Haynes, Jr. as well as Ronald Sinclair and Thomas Trujillo were members of the Street Narcotics Unit ("SNU") of the Miami Police Department. According to trial testimony, before the 4:00 P.M. roll call on that day, the Chief of Police received a letter in which an anonymous informant reported that unidentified drug dealers had met at 7th Avenue and 32nd Street, NW, in Miami and had contracted to kill Camacho. The SNU members were aware that this address was the residence of Leonardo Mercado, a drug dealer. Camacho, Veal, Watson, and Haynes were told of the death threat.
En route to a sting operation at the proximate location of 7th Avenue and 57th Street, NW, Camacho and Watson, Veal and Haynes, and Sinclair and Trujillo, proceeding in three undercover vehicles, stopped at Mercado's house and exited their vehicles. Camacho approached Mercado, who was outside, put his hand on Mercado's shoulder, and escorted him into his house. In the next few minutes, the other officers entered the house, closed the door, and lowered the curtains. Shortly thereafter, police cars and a fire/rescue unit with emergency medical treatment arrived in response to calls for assistance from Sinclair and Camacho.
When Officer Mary Reed of the Miami Police Department arrived and entered the house, she saw Camacho, Veal, Haynes, and Sinclair and a bloody Mercado lying on the floor moaning. Haynes pointed to Mercado and informed Reed that he was "the mother fucker that put a contract out on Camacho." Supp.R8-22. The officers urged Reed to "get [her] kick in," id. at 23, but she *3 declined because "[h]e was in bad shape," id. at 24. Despite emergency medical efforts, Mercado, who had suffered extensive head trauma and a severely bruised chest, died at the scene. A subsequent autopsy revealed multiple bruises and bloody wounds to his head, scalp, neck and face as well as fractured ribs.
Knowing that Mercado was dead, Camacho, Veal, Watson, Haynes, and other SNU officers left the scene and returned to the police department. Various eyewitnesses testified that they saw Camacho, Veal, Watson, Haynes, Sinclair, and Trujillo when they returned to the police station, entered the lieutenant's office, and closed the door. Although none of these individuals had noticed anything unusual about Camacho's appearance when he entered the lieutenant's office, the witnesses saw a rip in the front, chest area of his shirt and on the sleeve when he left that office. While inside the SNU lieutenant's office, one of the officers took pictures of Camacho that purportedly reflected his condition after the altercation with Mercado. These photographs, showing a long rip in the front of Camacho's shirt, which also was missing a pocket, were placed in the lieutenant's cabinet together with a butcher knife, supposedly retrieved from the altercation scene, and a bag of crack cocaine allegedly seized from Mercado.
At 7:55 P.M. that evening, Camacho went to the office of crime-scene technician Sylvia Romans, who photographed arrestees and/or officers involved in "control" situations, when an officer used more than normal force in making an arrest. Camacho asked Romans to photograph him to show his clothing and injuries. Romans complied and her photographs reveal a large tear in the front of Camacho's shirt, the pocket missing, and a long rip in the back of his right shirt sleeve. Romans noticed that Camacho had no cuts and was not bleeding anywhere but that his right eye was bruised.
A freelance photographer took random photographs at the Mercado residence after the altercation. One photograph showed Camacho at the doorway of Mercado's residence; his shirt was undamaged with no tear in the front and the pocket was intact. The same freelance photographer came to the SNU office and took additional photographs of Camacho that showed a large rip in the front of his shirt that had been taped together and the pocket was missing. When Camacho went to Romans's office a short time later to have her photograph him, the tape had been removed, the rips to his shirt were exposed, and there was no pocket on his shirt. Two visiting Detroit police officers accompanied the SNU lieutenant to Mercado's house. One testified that she saw an officer leaving the house with a rusty butcher knife. She saw a similar knife on the table in the lieutenant's office when the officers left that office.
At trial, an expert in fiber analysis was asked whether the tears to Camacho's shirt resulted from knife cuts or a tear. The expert testified that a mechanical object had been used to make a half-inch cut to the front of the shirt and that the shirt then had been ripped with a fifteen-inch tear. The damage to the right sleeve also was consistent with the shirt having been cut with a mechanical object and then torn. Similarly, the damage to the pocket area was consistent with the pocket having been cut and then torn from the shirt.
Camacho later was treated at a hospital for elevated blood pressure and swelling; none of the other officers had any injuries. In the hours following Mercado's death, Miami homicide investigators were advised that Camacho had been involved in the altercation with Mercado but that Veal, Watson, Haynes, and Sinclair had not. In the early morning hours of December 17, 1988, Veal, Watson, Haynes, and Sinclair gave statements to state homicide investigators regarding their knowledge of the circumstances surrounding Mercado's death. Each asserted that the officers had *5 stopped at Mercado's house because Camacho had seen some drug activity there that justified investigation and not because of the death threat to Camacho. Each denied having physical contact with Mercado or having heard or seen anything that would explain or assist the investigators in determining how Mercado's injuries had occurred. They stated that, by the time that they were inside the house, the altercation was over and Mercado was on the floor. Veal, Watson and Haynes also denied meeting with Camacho at the SNU office.
At trial, an expert in forensic serology and blood-stain-pattern interpretation compared the blood stains on Mercado to the blood stains on the clothing and shoes worn by Camacho, Veal, Watson, and Haynes on December 16, 1988. Thus, he reconstructed who had come into contact with Mercado and the amount of force used during this contact. The expert found that Veal's pants and shoes were covered with blood stains of Mercado's type. The blood spatter on Veal's pants and shoes was consistent with Veal's having struck Mercado multiple times using medium to medium-high force. The back of Veal's right shoe had a pattern consistent with having been stamped into Mercado's head multiple times. Additionally, shoe patterns on the seat and ankle areas of Mercado's pants matched Veal's right shoe.
Similarly, Watson's pants were blood-stained inside the cuffs and all the way up to the lap and pocket areas. The blood spatter on Watson's pants and sneakers was consistent with his having been within two to three feet of a direct impact to Mercado of medium to medium-high force. The location of the blood on Watson's pants and the spatter of Mercado's blood on two walls in the corner of the room above the bed was consistent with Watson's having been in the immediate vicinity of a direct impact to Mercado's head while Mercado was in an upright position in the corner of the room near the bed and not after Mercado was on the floor. A criminology expert in latent *6 prints also testified that Watson's right shoe was consistent with several of Mercado's wounds and that his shoes were consistent with injuries in two different areas of one wound, which showed two points of contact. Another smaller wound matched the forward part of Watson's right shoe, and a third wound also matched Watson's shoe.
Haynes's left shoe had blood on it and his shirt had one blood spot. His pants, however, had no blood stains because he had laundered his pants and shoe laces before being asked to surrender them. A criminology expert testified that the wounds on Mercado's forehead and left cheek near his eye matched Haynes's left shoe and were consistent with a single contact.
On Monday, December 19, 1988, Federal Bureau of Investigation ("FBI") Agent David Hedgecock, assigned to the civil rights unit in Miami, learned of the incident resulting in Mercado's death and opened an investigation in conjunction with Miami Police Department homicide detectives. This investigation led to federal, civil rights charges against Camacho, Veal, Watson, Haynes, Sinclair, and Trujillo. In conducting the FBI investigation, Hedgecock received, reviewed, and used all of the evidence collected by the state, including the officers' statements, Romans's photographs of Camacho, and all other physical evidence. The officers were charged with infringing Mercado's civil rights in violation of 18 U.S.C. §§ 241 and 242.
In the federal civil rights case that was tried in 1990, the officers moved pursuant to
Garrity
to suppress their statements concerning the circumstances of Mercado's death. The district judge
granted the officers' suppression motions because he determined that the statements made by Veal,
Watson and Haynes resulting from questioning at the police station and with the advice of counsel
*7
were within the scope of
Garrity.
[2]
See United States v. Camacho,
In July, 1993, a federal grand jury in the Southern District of Florida indicted Camacho, Veal, Watson, and Haynes. [3] They were charged in Count I with conspiring under 18 U.S.C. § 371 to obstruct the due administration of justice in violation of 18 U.S.C. § 1503 and engaging in misleading conduct designed to hinder, delay, and prevent the communication of information relating to the possible commission of a federal offense to a federal law enforcement officer or judge in violation of 18 U.S.C. § 1512 and, in Count II, with knowingly misleading state investigators regarding the true circumstances of the death of Mercado with the intent to prevent the communication of information relating to the possible commission of a federal offense in violation of 18 U.S.C. §§ 1512(b)(3) and 2. The remaining counts charged them with perjury in violation of 18 U.S.C. § 1623 and false statements in violation of 18 U.S.C. § 1001.
All of the officers moved to dismiss Count II because it failed to allege facts sufficient to constitute a violation of 18 U.S.C. § 1512(b)(3). The district judge denied those motions. Veal, Watson and Haynes moved to suppress their statements that had been suppressed under Garrity in the civil rights trial. The district judge also denied those motions.
Following a ten-week trial, Camacho, Veal, Watson, and Haynes were convicted on Count II and acquitted on all other counts. The district judge denied their motions for judgments *8 notwithstanding the verdict and/or for a new trial. Camacho was sentenced to thirty months of imprisonment and two years of supervised release. Veal, Watson and Haynes each were sentenced to twenty-one months of imprisonment and two years of supervised release. All remain on bond pending appeal.
II. ANALYSIS
On appeal, Veal, Watson and Haynes challenge the district judge's denial of their motions to suppress their statements after Mercado's death because the same judge had suppressed those statements under Garrity in the civil rights trial. Camacho, Veal, Watson and Haynes argue that the district judge improperly denied their motions to dismiss based on 18 U.S.C. § 1512(b)(3) and incorrectly instructed the jury on this statute. All contend that the evidence was insufficient to support the verdicts against them. Veal argues that the district judge improperly instructed the jury on materiality. We will address each of these arguments.
A. Admission of Statements Previously Suppressed Under Garrity
Veal, Watson and Haynes argue that the district judge erred by permitting the government to use their statements concerning Mercado's death in the obstruction of justice trial when that judge had suppressed those statements under Garrity in the civil rights trial. In Garrity, the Supreme Court held that Fifth Amendment protections apply to police officers subjected to interrogation by other law enforcement officers and that incriminating statements made under threat of termination for remaining silent are inadmissible in a subsequent criminal prosecution concerning the matter of inquiry absent a knowing and voluntary waiver. Garrity, 385 U.S. at 500, 87 S.Ct. at 620. *9 Following an evidentiary hearing, the district judge suppressed the officers' statements under Garrity in the civil rights trial because he concluded
that the Defendants Haynes, Sinclair, Veal and Watson subjectively believed that failure to answer would result in termination, that they believed they could not invoke the Fifth Amendment without being fired, that these beliefs under the facts of this case were objectively reasonable, and that the actions of the State were directly implicated in creating this belief.
Camacho,
In the obstruction case, the government alleged that the officers acted individually and
collectively to impede the official investigation into the death of Mercado. Veal, Watson and
Haynes sought suppression of their statements made to state investigating officials at police
headquarters on December 17, 1988. They argue that these statements, suppressed under
Garrity
in the civil rights trial, should not have been admitted into evidence in the obstruction case to
establish charges of conspiracy to obstruct justice, conspiracy to tamper with a witness, tampering
with a witness, and perjury. Concluding that
Garrity
and the Fifth Amendment do not protect false
Council of Baltimore,
statements from subsequent prosecutions for such crimes as perjury and obstruction of justice, the district judge admitted the officers' statements.
Veal, Watson and Haynes contend that their statements suppressed in the civil rights trial were per se inadmissible in the obstruction of justice trial. They argue that statements declared to be protected by Garrity are forever barred from use in any prosecution, including one for perjury, false statements, or obstruction of justice. Their argument is premised on the notion that their statements were coerced because they would have been fired from the police department if they had not provided statements.
In determining whether the government may use Garrity statements in a subsequent federal, criminal prosecution, we note that the Supreme Court has been resolute in holding that the Fifth Amendment does not shield perjured or false statements. Concerning false testimony before a grand jury, the Court spoke clearly and strongly:
In this constitutional process of securing a witness' testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings.... Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties....
.... *11 [A] witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury, any more than would be the case with false testimony before a petit jury or other duly constituted tribunal.
United States v. Mandujano,
Even in the case of statutorily immunized testimony, the "Court has never held ... that the
Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony....
[N]either the immunity statute nor the Fifth Amendment precludes the use of respondent's
immunized testimony at a subsequent prosecution for making false statements."
United States v.
*12
Apfelbaum,
Like false testimony before a grand jury, the Court has not excluded from criminal liability
false statements made to governmental agents or agencies, whether or not those statements were
made under oath. In upholding a conviction for falsely denying Communist affiliation in an affidavit
filed with a governmental agency, the Court stated: "Our legal system provides methods for
challenging the Government's right to ask questions-lying is not one of them. A citizen may decline
to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully
answer with a falsehood."
Bryson v. United States,
Although the Supreme Court has not addressed the specific issue before us where the false statements previously were suppressed in the Garrity context, other circuits have held that the Fifth Amendment and Garrity provide no insulation against a subsequent perjury or obstruction of justice charge if a witness makes false statements. In United States ex rel. Annunziato v. Deegan, 440 F.2d 304 (2d Cir.1971), the defendant was convicted in state court for committing perjury before a grand jury. He subsequently filed a habeas corpus petition in which he asked the federal courts to reverse his conviction, partly because he contended that his false statements had been compelled in violation of Garrity. The Second Circuit analyzed this argument as follows:
[A]ppellant claims that his testimony under compulsion before the grand jury, because his failure to waive immunity would have resulted in dismissal from public employment, violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments.... [A]ppellant was not prosecuted for past criminal activity based on what he was forced to reveal about himself; he was prosecuted for the commission of a crime while testifying, i.e. perjury. In short, where a public employee may not be put to the Hobson's Choice of self-incrimination or unemployment, he is not privileged to resort to the third alternative, i.e., lying. The Supreme Court has squarely so held.
Id. at 306 (emphasis added).
In several cases, the Seventh Circuit followed the reasoning of
Annunziato
and affirmed the
convictions of Chicago police officers for making false statements before a grand jury in violation
of 18 U.S.C. § 1623, although the officers received
Garrity
protection for their testimonies. In
United States v. Devitt,
Garrity and its progeny do not proscribe the use, in a criminal prosecution under 18 U.S.C. § 1621 or § 1623, of a defendant's allegedly perjurious statements.... Garrity provides the witness with adequate protection against the government's use, in subsequent criminal proceedings, of information obtained as a result of his testimony, where his refusal to testify would form the basis for disciplinary action against him. Gardner [v. Broderick, 392 U.S. 273,88 S.Ct. 1913 ,20 L.Ed.2d 1082 (1968),] and [Uniformed] Sanitation Men [Ass'n v. Commissioner of Sanitation,392 U.S. 280 ,88 S.Ct. 1917 ,20 L.Ed.2d 1089 (1968),] provide the witness with a shield against such disciplinary action based upon his refusal to testify, in cases in which he refuses to do so, believing that his testimony or the fruits thereof can be used against him in subsequent criminal proceedings.
Together, these decisions provide adequate protection of the witness's Fifth Amendment rights. We find no reason or justification for extending this umbrella of protection to shield a witness against prosecution for knowingly giving false testimony.
Id.
at 142 (emphasis added);
see also United States v. Pacente,
The Third Circuit also addressed similar facts in
Fraternal Order of Police, Lodge No. 5 v.
City of Philadelphia,
[T]his argument [police union's argument that threat of demotion or failure to obtain promotion absent completion of application violates Fifth Amendment] presents us with a mixture of plainly erroneous and potentially meritorious but more difficult issues. There can be no question, for instance, that the police department may prosecute officers for lying on the questionnaire under Pennsylvania law. The fifth amendment does not protect a citizen against the consequences of committing perjury. See U.S. ex rel. Annunziato v. Deegan, 440 *16 F.2d 304 (2d Cir.1971) (upholding public employee's conviction for perjury based upon testimony obtained under threat of discharge).
Lodge No. 5,
We also adopt this rationale in our circuit. Under Garrity, an accused in an internal investigation may be confronted with the grim reality that he can either refuse to give any information and lose his job or provide an incriminating statement about the matter under investigation and not be prosecuted concerning that matter. [10] An accused may not abuse Garrity by committing a crime involving false statements and thereafter rely on Garrity to provide a safe haven by foreclosing any subsequent use of such statements in a prosecution for perjury, false statements, or obstruction of justice. Significantly, counsel advised Veal, Watson and Haynes to be truthful in giving their statements to investigating authorities. [11]
*17
Although an accused may not be forced to choose between incriminating himself and losing
his job under
Garrity,
neither
Garrity
nor the Fifth Amendment prohibits prosecution and
punishment for false statements or other crimes committed during the
making
of
Garrity
-protected
statements. Giving a false statement is an
independent
criminal act that occurs
when
the individual
makes the false statement; it is
separate
from the events to which the statement relates, the matter
being investigated.
See Lodge No. 5,
advised Defendants Haynes, Sinclair, Veal and Watson that the applicable rules and regulations prohibited witness officers from invoking their privilege against self-incrimination, that they would have to answer all questions truthfully and finally that if they refused to answer they would be fired.
....
Defendants Haynes, Sinclair, Veal and Watson also persuasively argue that they
felt they were required to give a statement based upon the advice of counsel.
Attorney Klausner testified that his advice to the officers was
to answer truthfully
every question put by the investigating officers,
under penalty of job loss.
Camacho,
Watson and Haynes also argue that their statements were coerced in violation of their Fifth
Amendment rights under
Mincey v. Arizona,
The predicament in which Veal, Watson and Haynes found themselves at police headquarters in the early morning hours of December 17, 1988, was of their own making. While they feared the loss of their jobs if they claimed the Fifth Amendment and remained silent, Garrity did not afford them refuge to give false statements to investigators and not be prosecuted for obstruction of justice. Their deliberate, false statements resulted from their independent, voluntary choices and impeded the investigation of Mercado's death. By giving false statements, they obstructed justice relating to the investigation of Mercado's death and provided the avenue for prosecution in this case which would have been unavailable if they had told the truth.
B. Interpretation and Application of 18 U.S.C. § 1512(b)(3)
Veal, Watson, Haynes, and Camacho argue that Count II, as charged in the indictment and as the jury was instructed on it, fails to state a violation of 18 U.S.C. § 1512(b)(3). They support their argument by construing the statutory language and challenging the federal nexus of their acts. We address both of these arguments.
*20 1. Statutory Construction
Count II of the indictment, the only count on which Veal, Watson, Haynes, and Camacho were convicted, states that they
did knowingly engage in misleading conduct toward another person, to wit: law enforcement investigators of the State of Florida, with the intent to hinder, delay, and prevent the communication to a law enforcement officer and judge of the United States of America of information relating to the possible commission of a federal offense, that is, the defendants did knowingly mislead State of Florida law enforcement investigators, and other persons, in order to prevent them from communicating to agents of the Federal Bureau of Investigation and the United States Department of Justice and judges of the United States of America, information relating to the true circumstances surrounding the death of Leonardo Mercado on December 16, 1988.
All in violation of Title 18, United States Code, Sections 1512(b)(3) and 2. R1-1-9-10. The statute at issue, 18 U.S.C. § 1512(b)(3), provides in relevant part:
Tampering with a witness, victim, or an informant
.... (b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to-
....
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. § 1512(b)(3) (emphasis added).
Veal, Watson, Haynes, and Camacho contend that "another person" in § 1512(b)(3) does not refer to state law enforcement agents but to persons who have relevant information regarding the possible commission of a federal crime and, thus, can be hindered, delayed or prevented from *21 communicating this information to federal officers. In short, they argue that the statute protects the potential messenger or victim, who already possesses pertinent knowledge, rather than the recipient or investigator, who acquires information. They fortify their argument with the title of the statute, "Tampering with a witness, victim, or an informant," which they claim plainly evidences that Congress intended the statute to protect only those individuals who have information regarding the commission or possible commission of a federal crime. 18 U.S.C. § 1512. The district judge rejected this argument in a collective motion to dismiss Count II, and we agree.
Our court reviews a district court's statutory interpretation and application
de novo. See
United States v. Grigsby,
The application of these principles exposes the infirmities in the arguments by Veal, Watson, Haynes, and Camacho. To reach an analysis of legislative history, they first must show that *22 "another person" is ambiguous and requires the aid of legislative history for interpretation. As the district court found, there is no ambiguity in "another person," which is easily and commonly understood to mean any person, regardless of whether he possessed knowledge of the commission or possible commission of a federal crime from being an eyewitness or investigating official. The statute broadly forbids one to "engage[ ] in misleading conduct toward another person, with the intent to ... hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense." 18 U.S.C. § 1512(b)(3). The government alleged that Veal, Watson, Haynes, and Camacho misled state investigators by not telling them the true circumstances surrounding Mercado's death to prevent the investigators from learning the actual facts of his death and, thereby, precluding their communicating those facts to the Federal Bureau of Investigation, the United States Department of Justice, and judges of the United states. The conduct of Veal, Watson, Haynes, and Camacho falls within the broad language of § 1512(b)(3). [16]
Furthermore, using this common definition does not lead to an absurd result. Veal, Watson,
Haynes, and Camacho argue that acceptance of the plain language of the statute would federally
criminalize every false statement made by anyone to any police officer. The clear language of the
statute, however, negates that interpretation because of the statutorily prescribed federal nexus with
*23
federal agencies and judges. There is nothing irrational about a federal statute that seeks to prevent
any person from perverting the truth-seeking function of investigative or judicial processes.
See
McLeod,
Additionally, a plain-language reading of § 1512(b)(3) does not render the statute redundant,
implausible, or inconsistent with other sections. Veal, Watson, Haynes, and Camacho rely on the
caption or title of 18 U.S.C. § 1512 as evidence that Congress did not intend that persons with no
pre-existing knowledge be included within the purview of this statute. To construe the statute, they
urge the application of the doctrine of
ejusdem generis,
representing "that where general words
follow a specific enumeration of persons or things, the general words should be limited to persons
or things similar to those specifically enumerated."
Turkette,
The rule of ejusdem generis is "no more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute." Id. at 581, 101 S.Ct. at 2528. In declining to apply the principle of ejusdem generis to determine that only false statements that pervert governmental functions are encompassed by 18 U.S.C. § 1001, the Court stated that "it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy-even assuming that it is possible to identify that evil from something other than the text of the statute itself." Brogan, --- U.S. at ----, 118 S.Ct. *24 at 809. By insisting that the statute be read in the most restrictive way, Veal, Watson, Haynes, and Camacho have attempted to create an uncertainty in the statute where none exists.
Nothing in the statutory language or the caption contains this artificial definition that they
advance. The title states "witness"; it does not state or require that the witness have pre-existing
knowledge. Significantly, police officers, as a consequence of their occupation, become witnesses
as a matter of course in each investigation in which they are involved. Thus, the terms used in the
statutory title do not exempt police officers. The fact that Congress did not use restrictive language
in drafting § 1512(b)(3) confirms our logical conclusion that "witness," as used in the caption, can
be interpreted to encompass state investigators.
See United States v. Castro,
Even if review of the legislative history were appropriate, it rejects the rule of ejusdem generis and discredits the restrictive view of the statute presented by Veal, Watson, Haynes, and Camacho. See Victim & Witness Protection Act of 1982, S.Rep. No. 97-532, at 18 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2524. The Senate Report evinces legislative intent to expand the existing "obstruction of justice" statutory scheme by enacting § 1512. Id. Expressing concern that *25 existing statutes failed to include various forms of obstructive conduct, the Senate Committee stated its conclusion that § 1512(b)(3) should be read in view of congressional recognition that
the purpose of preventing an obstruction or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice.
Id. (emphasis added). To reach such cases, the Senate Report states that the Committee
does not intend that the doctrine of ejusdem generis be applied to limit the coverage of [subsection (b)(3) ]. Instead, the analysis should be functional in nature to cover conduct the function of which is to tamper with a witness, victim, or informant in order to frustrate the ends of justice. For example, a person who induces another to remain silent or to give misleading information to a Federal law enforcement officer would be guilty under subsection [ (b)(3) ], irrespective of whether he employed deception, intimidation, threat, or force as to the person.
Id. (emphasis added).
Thus, the Senate Report on subsection (b)(3) reveals that it is to be read to include a wide range of conduct that thwarts justice. The actions of Veal, Watson, Haynes, and Camacho fit within the Committee's discussion of proscribed conduct, which expressly includes activities designed to create witnesses as part of a cover-up and to use unwitting third parties or entities to deflect the efforts of law enforcement agents in discovering the truth. Veal, Watson, Haynes, and Camacho used deception to thwart the investigation into Mercado's death by creating false and misleading information, which they related to state investigators with the knowledge that this information would be relayed to and relied upon by other investigators. To ensure that they would be exonerated of any jurors. Section 1512, entitled "Tampering with a witness, victim, or an informant," and § 1513, entitled "Retaliating against a witness, victim, or an informant," created an entirely new and broader set of obstruction of justice offenses. Subsection (b)(3) of 18 U.S.C. § 1512 was originally enacted and discussed in the Senate
Report as subsection (a)(3).
wrongdoing in Mercado's death, they further used police officers and personnel, such as the
technician photographer of Camacho's shirt, who they either knew would be or likely would be
witnesses in the Mercado investigation, as conduits to create false and misleading evidence about
the events resulting in Mercado's death.
Cf. United States v. King,
Veal, Watson, Haynes, and Camacho also argue that their conviction for violating § 1512(b)(3) was improper because all that was charged in the indictment and proved at trial was that false or contrived and misleading information was given to state investigators with no knowledge or intent that this information would be communicated to federal authorities relative to a federal crime or investigation. Since the statute requires that a violator "hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense," they contend that their actions, however reprehensible and, perhaps, violative of state law, did not have sufficient federal nexus *27 to support their convictions for violating § 1512(b)(3). 18 U.S.C. § 1512(b)(3). Thus, they posit that their § 1512(b)(3) convictions cannot stand, not only because their false and misleading information was not directly communicated to federal agents, but also because there was no existing or imminent federal investigation of a crime of which they had specific knowledge and intended to hinder at the time that their subject actions occurred. They further argue that the district judge's instructions on § 1512(b)(3) regarding this issue misled the jury and erroneously resulted in their convictions.
This federal nexus argument implicates the specific intent or mens rea requirements for violating § 1512(b)(3), which we must analyze in the proper statutory context. The district judge gave the following jury instruction, explaining the specific intent and conduct necessary to find a violation of § 1512(b)(3):
In order to sustain its burden of proof as to this charge, count two, the Government must prove the following three essential elements beyond a reasonable doubt: First, that the defendant knowingly engaged in misleading conduct toward another person.
Second, that the defendant did so with the intent to hinder, delay or prevent the communication to a law enforcement officer or Judge of the United States.
And, third, that such information related to the commission or possible commission of a Federal offense.
.... [ T]he Government does not need to prove any state of mind with respect to the circumstances that the Judge or law enforcement officer is an official or employee of the Federal Government. That is, the Government does not need to prove that the defendant knew that the law enforcement officer was a Federal law enforcement officer, or that the Judge was a Federal Judge, so long as the law enforcement officer or Judge is, in fact, a law enforcement officer or Judge of the United States. The term "law enforcement officer" simply means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an advisor or consultant authorized under the law to engage in or supervis[e] the prevention, detection, investigation, or prosecution of an offense.
While the Government must prove, ladies and gentlemen of the jury, beyond a reasonable doubt that the defendant intended to hinder, delay or prevent the communication of information actually related to the commission or possible commission of a Federal offense, the Government does not need to prove that the defendant knew that the offense was Federal in nature.
R43-26, 28 (emphasis added). At the outset, we recognize that the actions of Veal, Watson, Haynes, and Camacho on December 16 and 17, 1988, constituted intentional "misleading conduct" under § 1512(b)(3). [20] Our inquiry is whether they needed to know at the time of their conduct that their misleading information would be communicated to federal law enforcement agents or a federal judge or that their involvement in the Mercado incident was a federal crime. Therefore, we must analyze the specific intent and federal nexus requirements for violations of § 1512(b)(3) as opposed to violations 18 U.S.C. § 1503 [21] and §§ 1512(a), [22] (b)(1), and (2), [23] the statutes that Veal, Watson, *29 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 magistrate judge 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, magistrate judge, 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 punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.
18 U.S.C. § 1503. Subsection 1512(a) provides:
(a)(1)Whoever kills or attempts to kill another person, with intent to— (A) prevent the attendance or testimony of any person in an official proceeding;
(B) prevent the production of a record, document, or other object, in an official proceeding; or
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings; shall be punished as provided in paragraph (2).
18 U.S.C. § 1512(a). Subsections 1512(b)(1) and (2) provide:
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading *30 Haynes, and Camacho argue are analogous to § 1512(b)(3) and, thus, use to support their positions.
Congress has enacted numerous obstruction of justice statutes designed to criminalize a variety of conduct. See generally 18 U.S.C. §§ 1501-1517. These statutes contain distinct jurisdictional prerequisites necessary for invoking federal authority to prosecute specific conduct. Different clauses in § 1512 prescribe different bases upon which federal jurisdiction is predicated.
Sections 1512(a)(1)(A), (a)(1)(B), and (b)(2)(A)-(D) all require that the proscribed conduct occur in the context of an "official proceeding." Section 1515 defines "official proceeding" as a proceeding in any federal court, federal grand juries, congressional hearings, federal agencies, and interstate insurance. See 18 U.S.C. § 1515(a). In contrast, §§ 1512(a)(1)(C) and (b)(3), the conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process ...
.... shall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. §§ 1512(b)(1) & (2). *31 subsection under which this case arises, contain a different jurisdictional basis: the defendant must have committed the obstructive conduct with the intent to "prevent," in § 1512(a)(1)(C), or "hinder, delay, or prevent," in § 1512(b)(3) communication to a federal law enforcement officer or judge information relating to the commission or possible commission of a federal crime. 18 U.S.C. § 1512(a)(1)(C) & (b)(3). Consistent with the previously discussed legislative history, which evidences congressional intent to broaden the scope of the obstruction of justice scheme, the jurisdictional basis under these subsections is not limited to "official proceedings" as is the case with the remaining provisions of § 1512. Instead, federal jurisdiction under § 1512(b)(3) is based on the federal interest of protecting the integrity of potential federal investigations by ensuring that transfers of information to federal law enforcement officers and judges relating to the possible commission of federal offenses be truthful and unimpeded. By its terminology, § 1512(b)(3) does not depend on the existence or imminency of a federal case or investigation but rather on the possible existence of a federal crime and a defendant's intention to thwart an inquiry into that crime. As §§ 1512(a)(1)(A), (a)(1)(B), and (b)(2)(A)-(D) evidence, Congress could have limited the conduct proscribed in § 1512(b)(3) if that had been its intention.
The reliance of Veal, Watson, Haynes, and Camacho on United States v. Shively, 927 F.2d 804 (5th Cir.1991), therefore, is misplaced. In Shively, defendants-appellants intimidated a witness by insinuating harm to his family and, consequently, caused him to testify falsely at a deposition for a case pending in state court two and a half years before a federal grand jury indictment. See id. at 810-11. Because the criminal conduct in that case did not concern a federal "official proceeding" as required under § 1512(b)(1), the Fifth Circuit reversed the convictions. Thus, the jury charge in that case is inapplicable to this case involving § 1512(b)(3). The Fifth Circuit did note that the *32 intimidation at issue in Shively well might have been within the ambit of § 1512(b)(3), which "speaks more broadly" because the limitation of "official proceeding" is absent. Id. at 812.
Similarly, the Supreme Court's decision in
United States v. Aguilar,
In terms of sufficiency of evidence to support Aguilar's conviction, the Court held that his false statements to an FBI agent were insufficient to meet that nexus in the absence of proof that he knew that such statements would be provided to a grand jury. The request by Veal, Watson, Haynes, and Camacho that we superimpose the nexus requirement of "due administration of justice" in § 1503 onto the different federal nexus requirement of § 1512(b)(3) is misguided. In Aguilar, the Court sought to place the phrase "due administration of justice" in the context of a legitimate federal interest that was consistent with the amorphous language used by Congress. The Court determined that the phrase "due administration of justice" connotes the federal government's interest in preserving the integrity of a judicial proceeding. Other obstruction statutes, such as § 1512(b)(3) *33 at issue in this case, implicate different federal interests, which specifically do not identify as the federal interest a federal judicial proceeding, pending or contemplated. [24]
Section 1512(b)(3), at issue in this case, does not connect the federal interest with an ongoing or imminent judicial proceeding or the defendant's knowledge of one. Instead, the federal interest derives from the character of the affected activity, the transmission of information to federal law enforcement agents and/or a federal judge concerning a possible federal crime. Seeking to foster the communication of truthful, nonmisleading information to federal authorities regarding a possible federal crime is the important federal interest that § 1512(b)(3) effectuates. Consequently, the specifically stated federal nexus in § 1512(b)(3), and not the Aguilar interpretation of the federal nexus in § 1503, controls our analysis of the scope of § 1512(b)(3). The district judge's instructions comported with § 1512(b)(3) by not requiring the jury to find the existence or imminency of an official federal proceeding.
*34
Significantly, § 1512(f)(2) expressly states that, for purposes of § 1512 prosecutions, "no
state of mind need be proved with respect to the circumstance" that the law enforcement officer
[25]
or judge is a
federal
agent or
federal
judge or serving as a
federal
advisor or consultant. 18 U.S.C.
§ 1512(f)(2). For violation of § 1512(b)(3), it is sufficient if the misleading information is
likely
to
be transferred to a federal agent.
[26]
All that was required for Veal, Watson and Haynes's violation
*35
of § 1512(b)(3) was the
possibility
or
likelihood
that their false and misleading information would
be transferred to federal authorities irrespective of the government authority represented by the
initial investigators.
[27]
See United States v. Fortenberry,
Likewise, § 1512(b)(3) does not require that a defendant know the federal nature of the crime about which he provides information because the statute criminalizes the transfer of misleading information which actually relates to a potential federal offense, regardless of whether the communicator of such information knows or believes that the crime about which he knowingly provides false or misleading information is federal. [28] Indeed, it would be ironic if congressional intent to ensure the integrity of investigations into possible federal crimes could be defeated simply defendant's intent: whether she thought she might be preventing [the witness's] future communication of information" (emphasis added)); see also United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir.1988) ("[I]t is only necessary for a defendant to have believed that a witness might give information to federal officials, and to have prevented this communication, to violate 18 U.S.C. § 1510." (emphasis added)). On appeal, Veal, Watson and Haynes restate in jurisdictional terms their contention that §
1512(b)(3) is inapplicable because their false and misleading statements concerning the circumstances of Mercado's death were made to state, not federal, investigators. As we have explained, the possibility that their false and misleading statements regarding their involvement in Mercado's death would be transmitted to federal authorities was sufficient for violation of § 1512(b)(3). Based on evidence that defendant-appellant's threats of physical harm to witnesses to
prevent them from communicating information relating to the commission or possible
commission of a federal crime to law enforcement officers, the Tenth Circuit held that "a threat
does not necessarily have to succeed and cause the person threatened to refrain from giving
information to law enforcement officers" for § 1512(b)(3) to be violated.
United States v.
Dunning,
by a defendant's ignorance, feigned or real, about the federal character of the crime. As the district judge determined, the statute provides that one who transmits misleading information with the intent to hinder, delay or prevent the communication of information to a law enforcement officer or judge is accountable under § 1512(b)(3) when the false or misleading information relates to a potential federal crime and that information does reach a federal agent or judge.
By its plain wording, § 1512(b)(3) is designed to ensure that information received by federal
investigators or judges regarding a potential federal crime be correct, truthful, and complete to
facilitate a full and fair investigation and adjudication. It is irrelevant to that inquiry whether the
person who provides false or misleading information that ultimately becomes relevant to a federal
investigation
intended
that a federal investigator or judge receive that information; it is only
relevant that a federal investigator or judge
received
it.
See Fortenberry,
C. Sufficiency of the Evidence
Veal, Watson, Haynes, and Camacho argue that the evidence was insufficient to support
their convictions for violating § 1512(b)(3), both as to their conduct or
actus reus
and specific intent
*37
or
mens rea.
The district judge denied their post-trial motions requesting acquittal notwithstanding
the verdict or, alternatively, for a new trial, wherein they raised the same arguments. To the extent
that they argue that their acquittal on Count I, alleging conspiracy to violate 18 U.S.C. §§ 1503 and
1512, establishes insufficiency of the evidence to support their convictions on Count II, their
argument improperly conflates the distinction between insufficiency of the evidence and inconsistent
verdicts. The Supreme Court has explained that "[s]ufficiency-of-the evidence review involves
assessment by the courts of whether the evidence adduced at trial could support any rational
determination of guilt beyond a reasonable doubt," a review that is "independent of the jury's
determination that evidence on another count was insufficient."
United States v. Powell,
469 U.S.
57, 67,
We review challenges to sufficiency of the evidence
de novo
and assess the evidence in the
light most favorable to the prosecution.
See United States v. Suba,
132 F.3d 662, 671 (11th
Cir.1998). We make all reasonable inferences and credibility choices in favor of the jury's verdict
as we evaluate the evidence to determine whether " "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.' "
Id.
(quoting
Jackson v. Virginia,
443
U.S. 307, 319,
We have explained that "another person" is unrestricted and includes the state investigators, who were the conduit for relaying false and misleading information imparted to them by Veal, Watson and Haynes to federal authorities. Furthermore, because § 1512(f) provides that no state of mind is needed for violation of § 1512(b)(3), we have explained that the officers did not need to know that their false and misleading statements would be relayed to federal authorities, the FBI, or that their actions constituted a federal crime at the time of their conduct. Pursuant to the district judge's accurate instructions on these elements of violation of § 1512(b)(3), our focus in analyzing the sufficiency-of-the-evidence arguments will be on the actus rea, or Veal, Watson, Haynes, and Camacho's intentional actions.
1. Veal, Watson and Haynes
The culpability of Veal, Watson and Haynes is based on their December 17, 1988, statements wherein they disavowed touching Mercado, observing any contact with him, or having any knowledge of the cause of his injuries [29] and also denied meeting at the police department after Mercado's death to discuss the incident. [30] The trial evidence revealed that, by the time that Veal, Watson and Haynes made their statements at approximately 2:00 A.M. on December 17, 1988, they knew that Mercado was dead. They also knew that the state investigators who questioned them were obtaining information about how Mercado received the injuries that resulted in his death. Veal, *39 Watson and Haynes unequivocally avowed that, when they entered Mercado's residence, the struggle was over and that the injured Mercado was lying on the floor.
Nevertheless, reasonable jurors could disbelieve those statements based upon the blood-spatter evidence, which conclusively placed Veal, Watson, Haynes, and Camacho at the scene at the time of Mercado's fatal injuries. Although Veal professed noninvolvement, the blood-spatter evidence showed that he had struck Mercado multiple times using medium to medium-high force and that he was present when others struck Mercado. Similarly, that evidence showed that Watson had kicked Mercado in the head with his shoe as many as four times and that he knew that officers other than Camacho also had kicked Mercado. The blood-spatter evidence additionally revealed that Haynes kicked Mercado in the face at least once and that he was present when others struck Mercado.
Although Veal, Watson and Haynes portrayed themselves as being ignorant of any attempt to discuss collectively the Mercado incident in a meeting at the police station, apparently to coordinate their stories, the jurors reasonably could have believed the testimonies of various eyewitnesses that these three officers and Camacho had met behind closed doors at the police department after the incident. Reading Veal, Watson and Haynes's strikingly similar statements together, the jurors fairly could have decided that the officers colluded to create the impression that they were innocent bystanders who came upon the scene after the altercation and that they had not been involved in any efforts to distort the true facts. The jurors reasonably could have concluded that, by intentionally omitting and concealing important, relevant information about their conduct concerning Mercado from the investigators and, thus, creating a false impression about what had actually occurred, Veal, Watson and Haynes's statements concerning their involvement in the *40 altercation with Mercado as well as their subsequent meeting at the police department were false and misleading and constituted "misleading conduct" within the meaning of § 1512(b)(3), which resulted in their convictions.
2. Camacho
Camacho argues that evidence regarding his ripped shirt and his presentation of it to police technician Romans for photographing is insufficient to constitute misleading conduct with intent to hinder or prevent the communication of information to law enforcement personnel. To the contrary, this evidence fits within the proscriptions of § 1512(b)(3), where applicable "misleading conduct" includes "knowingly submitting or inviting reliance on a[n] ... object that is misleading in a material respect; or knowingly using a trick, scheme, or device with intent to mislead." 18 U.S.C. § 1515(a)(3)(D)-(E). The jurors reasonably could have concluded that Camacho deliberately tore his shirt after he returned to the police station with the intent to convey to investigating officers a distorted impression about the nature and manner of the altercation that resulted in Mercado's death. Additionally, the jurors rationally could have determined that Camacho fabricated an exculpatory explanation about the circumstances that led to Mercado's violent death by tearing his shirt.
Camacho asked Romans to photograph his shirt under circumstances that logically would lead any investigator who received the photographs to believe that the condition of the shirt was a direct result of the altercation with Mercado and, thus, to arrive at erroneous conclusions about the *41 nature of the incident. Jurors reasonably could have determined that Camacho deliberately tore his shirt to create exculpatory evidence because of: the undisputed fact that the shirt was undamaged at the scene after the altercation; the suspect and surreptitious manner in which the shirt came to be damaged at the police station; Camacho's presentation of himself and his shirt to Romans who typically takes such pictures to document injuries to officers in "control" situations; the pictures taken of Camacho inside the lieutenant's office, which clearly were intended to show that Camacho's shirt had been damaged during a fight with Mercado; the forensic evidence, which contradicts the impression that Camacho attempted to create of how the shirt was damaged as an item of evidence pertinent to the control investigation; and the fact that Camacho, a veteran police officer, knew that any photographs taken of him following his participation in a control situation would be relied upon by investigators in their efforts to determine the cause of Mercado's death at his residence. Therefore, the jurors logically could have inferred that Camacho devised altered and misleading physical evidence, his ripped shirt, which was a critical and falsely exculpatory component in the investigation of Mercado's death, and concluded that he violated § 1512(b)(3).
D. Jury Instructions Regarding Materiality
Veal argues that the district judge improperly instructed the jury regarding materiality
because he informed the jurors that materiality was a legal question for the court to decide in
contradiction of
United States v. Gaudin,
For cases on direct appeal at the time that it was decided, such as this case,
Gaudin
applies
retroactively.
See United States v. Fern,
The only reference to "material" in the district judge's instructions concerning § 1512(b)(3)
occurred in the definition of "misleading conduct" from § 1515(a)(3)(B), where the adjective
"material" modifies "fact" and "respect."
[36]
Veal has presented an unwarranted extrapolation from
*44
the district judge's "materiality" instruction relating to the perjury counts under § 1623 and
misrepresented that instruction as being applicable to the § 1512(b)(3) instruction, which references
"material fact" and "material respect." We recognize the similarity between a violation of § 1001
for false statements in a matter within the jurisdiction of a federal department or agency and a
violation of § 1512(b)(3) for misleading conduct that obstructs a federal law enforcement officer or
judge from knowing the true facts relating to the commission or possible commission of a federal
crime.
Cf. United States v. Klais,
R43-27 (emphasis added); see 18 U.S.C. § 1515(a)(3)(B) & (D) (defining "misleading conduct" for purposes of § 1512 inter alia as "intentionally concealing a material fact" and "with intent to mislead, knowingly submitting or inviting reliance on ... [an] object that is misleading in a material respect" (emphasis added)). Veal incorrectly represents that "[t]he court followed the definition of misleading conduct
immediately with the instruction that materiality is a matter for the court to decide and not a question for the jury." Appellant Veal's Brief at 33 (emphasis added). While the instruction defining misleading conduct occurs within the district judge's instructions for Count II concerning § 1512(b)(3), the materiality instruction occurs not immediately thereafter, but subsequently, within the judge's instructions for Counts III, IV, VI-IX regarding § 1623. The two instructions are unrelated and not intertwined such that they would have been confusing to the jurors.
III. CONCLUSION
Veal, Watson, Haynes, and Camacho, experienced narcotics police officers, have presented various issues in an effort to overturn their convictions under § 1512(b)(3) for engaging in misleading or obstructive conduct relating to the federal investigation of the death of Mercado, a drug dealer. Veal, Watson and Haynes contest the admission in the obstruction case of their statements suppressed by the same district judge in their previous trial for violating Mercado's civil rights. All challenge the district judge's interpretation and application of § 1512(b)(3) as well as the sufficiency of the evidence to support their convictions. Veal argues that Gaudin precludes the district judge's jury instructions on materiality. For the reasons explained herein, we AFFIRM their convictions.
Notes
[*] Honorable Henry Woods, Senior U.S. District Judge for the Eastern District of Arkansas, sitting by designation.
[1] Under
Garrity,
a public employee is protected so that he does not forfeit his Fifth
Amendment right to silence or lose his public employment when requested to give a statement in
the course of an internal investigation; such statements may not be used against the employee in
a criminal prosecution concerning the matter under investigation.
See Lefkowitz v. Turley,
414
U.S. 70, 79-80,
[2] Camacho and Trujillo were not interviewed and gave no formal statements because they were identified as having been directly involved in Mercado's death.
[3] Jesus Aguer and Armando Aguilar, codefendants in the civil rights trial, were acquitted of all charges. Trujillo was not indicted in the obstruction of justice case.
[4] The Fifth Amendment protection afforded by Garrity to an accused who reasonably believes that he may lose his job if he does not answer investigation questions is self-executing; that is, it arises by operation of law; no authority or statute needs to grant it. See Wiley v. Mayor & City
[6] In an appeal to this court by defense attorneys who were subpoenaed to testify before the grand jury following the civil rights trial, we stated: "Immunity under Garrity prevents any statements made in the course of the internal investigation from being used against the officers in subsequent criminal proceedings." In re Federal Grand Jury Proceedings,975 F.2d 1488 , 1490 (11th Cir.1992) (per curiam). We note that the law-of-the-case doctrine does not apply in this case because the issue in that appeal, denial by the district judge of the attorneys' and intervenors Veal, Watson and Haynes's motions to quash the attorneys' subpoenas based on the attorney-client privilege, is different from the issue in this obstruction case of their giving false statements. See Jackson v. Motel 6 Multipurpose, Inc.,130 F.3d 999 , 1003 n. 7 (11th Cir.1997).
[7] In
Apfelbaum,
the Supreme Court held that neither the federal use immunity statute nor the
Fifth Amendment precluded the use of a defendant's false statements in a subsequent criminal
prosecution.
See
18 U.S.C. § 6002 (providing that no testimony or other information compelled
under an immunity order may be used against the witness in any criminal trial "
except
a
prosecution for perjury, giving a false statement, or otherwise failing to comply with the order"
(emphasis added)). The
Apfelbaum
defendant invoked his Fifth Amendment privilege during
grand jury testimony. After receiving use immunity under § 6002, he testified falsely. In
upholding his subsequent prosecution under the federal perjury statute, 18 U.S.C. § 1623, for
making false statements during testimony, the Court determined that neither the federal use
immunity statute nor the Fifth Amendment precluded the use of the defendant's false statements
in a subsequent criminal prosecution.
See Apfelbaum,
[8] Although a " "narrow exception,' " the
Apfelbaum
Court noted that perjury prosecutions
resulting from immunized testimony are permitted: "If the rule is that a witness who is granted
immunity may be placed in no worse a position than if he had been permitted to remain silent,
the principle that the Fifth Amendment does not protect false statements serves merely as a piece
of a legal mosaic justified solely by
stare decisis,
rather than as part of a doctrinally consistent
view of that Amendment."
[9] These consequences include a contempt order in the case of 18 U.S.C. § 6001 immunity or
forfeiture of any benefits under a plea/cooperation agreement in the case of "pocket" immunity.
Grants of informal or "pocket" immunity are evaluated under the same rules as grants of formal
or § 6001 immunity.
See United States v. Harvey,
[10]
Compare Erwin v. Price,
[11] In the civil trial, the district judge observed: Robert Klausner [attorney for the Fraternal Order of Police] testified unequivocally—and we credit his testimony—that on the night of the incident he
[12]
Mincey,
grounded in the Due Process Clause, requires the suppression of any confession or
statement obtained through official coercion that so completely overbore the will of the accused
that he effectively had no choice but to provide the statement.
See Mincey,
[13] We have addressed the compulsion associated with
Garrity,
the implied threat of dismissal
or discipline unless satisfactory responses concerning the matter under investigation are
forthcoming.
See Harrison,
[14] Our court has recognized that a statement is not involuntary if, "under the totality of the
circumstances," it is the product of "free and rational choice" and not extracted "by any sort of
threats of violence, or obtained by any direct or implied promises, or by the exertion of any
improper influence."
Harris v. Dugger,
[15] In addressing voluntariness under the Fifth Amendment, the Former Fifth Circuit
commented:
The fifth amendment preserves the right to choose, and the voluntariness of the
choice is always affected in some way by the exigencies of a particular situation.
The voluntariness inquiry necessarily incorporates an understanding that
defendant cannot be free from conflicting concerns, and in any case, defendant
must weigh the relative advantages of silence and explanation.
White,
[16] As we have described previously, the misleading conduct by Veal, Watson and Haynes consisted of their false statements about their respective participation in the injuries that resulted in Mercado's death and their subsequent, collusive meeting at the police department. Camacho's misleading conduct was his presenting himself to a police technician and asking her to photograph his torn shirt, purportedly resulting from his involvement in the altercation with Mercado. The jury obviously believed that Camacho had torn his shirt and removed the pocket to convey the misleading impression that Mercado had been active and aggressive during the incident that resulted in his death.
[17] The version of 18 U.S.C. § 1503 in effect before 1982 had been the only statute which directly addressed attempts to influence or tamper with witnesses. The 1982 amendments revised § 1503 by excluding any reference to witnesses and limiting its scope to officers and
[19] A similar Florida statute, entitled "Tampering with a witness, victim, or informant," states that it is a crime to "knowingly ... engage[ ] in misleading conduct toward another person ... with intent to cause or induce any person to ... [h]inder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense." Fla. Stat. 914.22(1)(e).
[20] The statutory, specific-intent definition of "misleading conduct" as it applies to § 1512(b)(3) and the conduct of Veal, Watson, Haynes, and Camacho is (A) knowingly making a false statement; (B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement; (C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity; (D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or (E) knowingly using a trick, scheme, or device with intent to mislead. 18 U.S.C. § 1515(a)(3).
[21] Entitled "Influencing or injuring officer or juror generally," § 1503 provides: Whoever corruptly, or by threats or force, or by any threatening letter or
[24] In § 1505, the federal interest derives from the nature of the affected proceeding, a federal
agency or congressional committee, but the statute does not require that a proceeding be pending
or contemplated. The federal interest in § 1511 stems from the nature of the affected activity,
state-regulated gambling enterprises, but there is no requirement of either an ongoing or
imminent state or federal proceeding. In the second and third clauses of § 1503, the federal
interest comes from the status of the targeted person, a federal juror, but no judicial proceeding is
required. In §§ 1512(a)(1)(A)-(B), (b)(1), and (b)(2)(A)-(D), the federal interest is the status of
the targeted person, potential witnesses in "official proceedings," but the statute expressly states
that the proceeding "need not be pending or about to be instituted at the time of the offense." 18
U.S.C. § 1512(e)(1);
see United States v. Kelley,
[25] As used in § 1512, "law enforcement officer" means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an advisor or consultant— (A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or (B) serving as a probation or pretrial services officer under this title[.] 18 U.S.C. § 1515(a)(4). Because of the concurrent jurisdiction of state and federal authorities in such areas as drug interdiction and homicides as well as their common goal of law enforcement, we recognize that state police officers can serve as advisors or consultants to federal agents in the "prevention, detection, investigation, or prosecution" of various federal crimes. Id. at § 1515(a)(4)(A).
[26] In the context of similarly worded 18 U.S.C. § 1512(a)(1)(C), which refers to an individual
who "kills or attempts to kill another person, with intent to ... prevent the communication by any
person to a law enforcement officer" or federal judge "of information relating to the commission
or possible commission of a Federal offense," other circuits have concluded that possible or
potential communication of information to federal authorities is sufficient.
Id.; see, e.g., United
States v. Stansfield,
[29] The indictment identifies these statements as Overt Acts I, J and K. See R1-1-6-7.
[30] The indictment identifies these statements as Overt Acts F, G and H. See R1-1-6.
[31] The conduct with which Camacho was charged under the indictment as misleading under Count II identifies these actions involving the torn shirt and presentation for photographing as Overt Act S as well as Camacho's false claim over the police radio that the butcher knife was still inside Mercado's residence as Overt Act N. See R1-1-8, 7.
[32] It is irrelevant that Camacho did not expressly ask Romans, or anyone else, to rely on the shirt and the photographs of it because this evidence inevitably would have been part of the investigation into Mercado's death. Similarly, it is irrelevant whether Camacho initiated asking Romans to photograph his shirt or whether this was standard procedure in the police department following a "control" situation, as he contends. Either way, he knew that the pictures would be used to document the incident involving Mercado, and he created false and misleading evidence by defacing his shirt within the meaning of § 1512(b)(3) and § 1515(a)(3).
[33] Under § 1001, construed in Gaudin, whoever, in any manner within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or representation; or (4) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both. 18 U.S.C. § 1001(a).
[34] Plain error review, applicable to alleged
Gaudin
errors when no objection was made at trial,
consists of an error being both plain and affecting substantial rights.
See Fern,
[35] Concerning the perjury counts, the district judge instructed: Now, with regard to "materiality," the materiality of the matter involved in the alleged false testimony is not a matter with which you are concerned, but, rather, is a question for the Court to decide. You are instructed that the questions asked of a defendant, as alleged in each of the respective counts, constitute[ ] material matters in the court proceedings referred to in the Indictment. R43-30.
[36] With regard to "misleading conduct" within the meaning of § 1512(b)(3), the district judge instructed the jury as follows: [F]or the purposes of this offense charged in count two, you are instructed that the term "misleading conduct" means the following: A, knowingly making a false statement, or, B, knowingly ... intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement, or, C, with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity, or, D, with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark or other object that is misleading in a material respect, or, finally, E, knowingly using a trick, scheme, or device with intent to mislead.