Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. L CR 76-4 - Jesse E. Eschbach, Judge.
Swygert and Sprecher, Circuit Judges, and Holder, District Judge.*fn* Holder, District Judge, concurring in part and dissenting in part.
Following a jury trial, defendant was found guilty of wilfully and by means of threats endeavoring to influence, intimidate and impede a witness in the discharge of her duty in a pending criminal case in violation of 18 U.S.C. § 1503. He was subsequently sentenced to the maximum term of five years imprisonment. On appeal, defendant challenges both his conviction and his sentence.
Defendant first contends that he was not subject to prosecution under 18 U.S.C. § 1503*fn1 because the conduct alleged in the indictment occurred in the presence of the court and, therefore, was punishable, if at all, only as contempt of court under 18 U.S.C. § 401(1).*fn2 We disagree.
The government is generally entitled to proceed under either of two applicable criminal statutes. United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir.), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 398, 93 S. Ct. 2772 (1973); United States v. Zouras, 497 F.2d 1115, 1121 n. 16 (7th Cir. 1974). And this rule has been applied in the present context. As the Supreme Court noted in Savin, Petitioner, 131 U.S. 267, 275, 33 L. Ed. 150, 9 S. Ct. 699 (1889):
It is contended that the substance of the charge against the appellant . . . is embraced by § 5399 [the predecessor of § 1503], and, it is argued, is punishable only by indictment. Undoubtedly the offence charged is embraced by that section, and is punishable by indictment. But the statute does not make that mode exclusive, if the offence be committed under such circumstances as to bring it within the power of the court under § 725 [the predecessor of § 401(1)] . . . .
Thus, there is ample authority to support the conclusion that misbehavior falling within the literal ambit of both sections is punishable under either. See also Nye v. United States, 313 U.S. 33, 49, 85 L. Ed. 1172, 61 S. Ct. 810 (1941); Pettibone v. United States, 148 U.S. 197, 206, 37 L. Ed. 419, 13 S. Ct. 542 (1893); Sharon v. Hill, 11 SAWY. 123, 24 F. 726 (C.C. Cal. 1885); United States v. Walasek, 527 F.2d 676, 680 (3d Cir. 1975).
In support of his claim that the coverage of the two provisions cannot overlap, defendant cites United States v. Essex, 407 F.2d 214 (6th Cir. 1969). Essex correctly states that section 401(1) was originally enacted to restrict the summary contempt power of the federal courts. This was accomplished by limiting the covered conduct to that which occurs within the physical vicinity of the court. Nye, supra, 313 U.S. at 48-49. Congress contemplated that misbehavior not subject to the summary contempt power could still be reached by indictment under another criminal statute such as Section 1503. Id. at 52. However, there is nothing in the legislative history discussed in Essex which indicates a congressional intent to prohibit proceeding by indictment where exercise of the summary contempt power would be permissible. Indeed, such a prohibition would be inconsistent with the purpose of Section 401(1), i. e., to restrict, not expand, the exercise of the summary contempt jurisdiction. As the Third Circuit recently stated:
In view of the historical background set forth in Essex, the possibility that the conduct which . . . [defendant] was found to have engaged in might be covered by § 401 . . . does not suggest that the conduct should not be found to be within § 1503. Of course, there are many instances in which a single course of conduct may violate more than one statute.
Walasek, supra, 527 F.2d at 680 (emphasis in original).
Defendant next contends that the evidence adduced at trial was insufficient to support his conviction under Section 1503. The word "endeavor" in Section 1503*fn3 "describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent." United States v. Russell, 255 U.S. 138, 143, 65 L. Ed. 553, 41 S. Ct. 260 (1921). The endeavor need not be successful, but it must have at least a reasonable tendency to impede the witness in the discharge of her duties. United States v. DeStefano, 476 F.2d 324, 330 (7th Cir. 1973); United States v. Jackson, 168 U.S. App. D.C. 198, 513 F.2d 456, 460 (D.C. Cir. 1975); United States v. Roe, 529 F.2d 629, 632 (4th Cir. 1975). Also, while it is necessary to establish that the charged conduct was intended to impede the witness, "intent may, and generally must, be proved circumstantially; normally, the natural probable consequences of an act may satisfactorily evidence the state of mind accompanying it, even when a particular mental attitude is a crucial element of the offense. We perceive nothing that would divert cases of the instant type from this branch of legal doctrine." Jackson, supra, 513 F.2d at 461 (footnotes omitted).
With these principles in mind, the case against defendant may be briefly summarized. On June 21, 1974, Jevita Hobbs was testifying as a witness for the government in United States v. Garland Jeffers, et al., 520 F.2d 1256, involving an alleged conspiracy to distribute heroin. On the same date, defendant, accompanied by his sister, attended the Jeffers trial. Ms. Hobbs had at one time been married to one of the Jeffers defendants and she possessed personal knowledge of the other defendants and their activities. She also knew defendant's sister to be the girlfriend of Garland Jeffers, and she had met defendant on several occasions at the apartment where defendant's sister and Jeffers were living. Ms. Hobbs had also known defendant to associate with Nathaniel Jeffers, who was also a defendant in the Jeffers case.*fn4
Ms. Hobbs testified in the case at bar that, after referring to defendant several times during her Jeffers testimony and while answering a question later during the same testimony, she observed defendant "standing up and shaking his fist" and heard him say "you better not." Ms. Hobbs interpreted defendant's actions and words as a threat calculated to impede her continued testimony. She further testified that a recess was called at this point and she was taken from the courtroom to pull herself together because, in her words, "I wasn't going to finish testifying." After being assured of her safety while in the courtroom, she returned to the stand and completed her testimony.
A Special Agent with the Drug Enforcement Administration then testified that defendant, while standing facing the witness stand, shook his fist and head in a negative direction. The agent further testified that defendant appeared to be speaking, but the agent did not hear what was said. A Deputy United States Marshall then testified along similar lines and added that defendant's actions continued for approximately thirty seconds.
The final witness for the government was the judge who presided at the Jeffers trial. He stated:
I noticed that the testimony of Miss Hobbs was coming out very slowly. Her answers were, there were long pauses between the questions and the answers. I noticed that she was looking in the back of the courtroom and at approximately that same time I saw Mr. Harris stand up in the back of the courtroom and for an instant I observed him shake his fist and move his lips facing in the direction of the witness stand.
The judge also testified that Ms. Hobbs was "fairly well shaken" by the incident.
While the evidence is not overwhelming, when viewed in the light most favorable to the government, we are satisfied that it is sufficient for the jury to have inferred defendant's guilt beyond a reasonable doubt of endeavoring to impede Ms. Hobbs' testimony in the Jeffers case. ...