The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge:
MEMORANDUM OPINION AND ORDER
The indictment in this case charges defendant Jamaine Jackson with
contempt of court in violation of 18 U.S.C. § 401(3) and obstruction
of justice in violation of 18 U.S.C. § 1503. Both charges arise from
the same set of allegations. Jackson is claimed to have been "a
participant and a material witness" in the assault of Annette Williams,
which is one of the crimes charged against Clarence Hankton, under
indictment before another judge of this Court for crimes connected with
his role in a street gang. Jackson had been granted use immunity and had
been compelled pursuant to 18 U.S.C. § 6002 to testify before the
grand jury regarding the Williams assault. In August 2001, the judge
presiding over Hankton's case entered an order under § 6002 granting
Jackson use immunity in connection with his anticipated trial testimony
and ordered Jackson to give a videotaped deposition and to testify at
trial. When Jackson appeared for his deposition, however, he refused to
answer questions that were posed to him.
In Count 1, the indictment alleges that in refusing to testify at the
deposition, Jackson knowingly and willfully disobeyed a lawful court
order, in violation of 18 U.S.C. § 401(3). In Count 2, the
indictment alleges that in refusing to testify at the deposition and
making known his intention not to testify at trial, Jackson corruptly
influenced, obstructed, and impeded the due administration of justice and
endeavored to do so, in violation of 18 U.S.C. § 1503.
Jackson has moved to dismiss Count 2 for failure to charge an offense
and has also moved to dismiss that Count as multiplicitous of Count 1.
Neither of these motions has merit, but the intersection of Jackson's
motions exposes an important issue regarding the obstruction charge that
may have an impact on the trial of the case.
1. Sufficiency of Count 2's allegations
Section 1503 covers a variety of offenses, including attempts to
influence, intimidate or impede jurors, grand jurors, and court
officers; injuring jurors, grand jurors, court officers, and magistrate
judges on account of their actions; and other endeavors to obstruct the
administration of justice. Jackson is charged under the "omnibus" clause
of § 1503, which provides that whoever "corruptly or by threats or
force, or by any threatening letter or communication, influences,
obstructs, impedes, or
endeavors to influence, obstruct, or impede, the
due administration of justice" commits an offense. He argues summarily
that § 1503 encompasses acts designed to influence or mislead others
and does not reach an individual's refusal to testify, stating that he
has been "unable to find a case in which a defendant was charged with a
violation of Section 1503 based on his failure to testify after being
granted immunity." Motion to Dismiss Count 2, p. 2. Though the government
says it has found one, United States v. Banks, 988 F.2d 1106 (11th Cir.
1993), that decision does not discuss the applicability of § 1503 in
this type of case. There is, however, an earlier decision in the same
Banks case in which the Eleventh Circuit directly addressed the point
raised by Jackson. United States v. Banks, 942 F.2d 1596
[942 F.2d 1576] (11th Cir. 1991). Banks had been convicted of marijuana
trafficking in state court and testified at his sentencing that he had
obtained the marijuana from Curtis Motley. Federal law enforcement
authorities later initiated an investigation of Motley, and Banks was
immunized and called to testify before a grand jury. He refused to
testify, claiming that to do so would put him and his family in danger.
He was indicted and convicted of obstruction of justice under § 1503.
Though the Eleventh Circuit reversed the conviction on a jury instruction
issue, it squarely held that § 1503 applied. The court stated that it
had "no difficulty in concluding that a person who, by refusing to
testify before a grand jury, seeks to impede the proper functioning of
the grand jury — the `due administration of justice' — by withholding
pertinent information, may properly be convicted of violating § 1503."
Id. at 1578.
Though Banks is not controlling authority in this Circuit, this Court
finds the Eleventh Circuit's decision persuasive. We have been unable to
locate any other reported decisions concerning prosecutions under §
1503 for refusal to testify, but there is a significant amount of
authority supporting the proposition that an individual's giving of false
testimony to a grand jury can violate § 1503, so long as "corrupt"
intent is shown. See generally United States v. Russo, 104 F.3d 431,
435-36 (D.C. Cir. 1997) (citing cases). Such conduct, like that of a
person who refuses to testify, does not involve an attempt to involve a
third party in the obstructive endeavor. The current situation is
likewise analogous to one in which an individual secretes or destroys
documents that have been subpoenaed and thus attempts to thwart the
administration of justice on his own without involving others. In such a
case it is well-established that the person can be prosecuted under
§ 1503. See, e.g., United States v. Ruggiero, 934 F.2d 440, 446 (2d
Cir. 1991) (concealment of subpoenaed records); United States v. Lencli,
805 F.2d 1443, 1445-46 (9th Cir. 1986) (same); United States v. McComb,
744 F.2d 555, 559 & n. 3 (7th Cir. 1984) (alteration of records produced
to grand jury); United States v. Lundwall, 1 F. Supp.2d 249 (S.D.N.Y.
1998) (withholding and destroying documents sought in civil lawsuit). It
stands to reason that there is no per se bar to prosecution of an
individual for withholding testimony from the grand jury or at a trial.
For that reason, and because Count 2 alleges all the statutory elements
of a violation of § 1503's omnibus clause, the Court denies Jackson's
motion to dismiss.
Jackson also argues that Count 2's § 1503 charge is multiplicitous
of the contempt charge in Count 1. Multiplicity consists of charging a
single offense in multiple counts. See, e.g., United States v. Hong,
934 F.2d 105, 108 (7th Cir. 1991). This is improper because it exposes
the defendant to the possibility of multiple punishment for a single
offense, id, and also because it indicates to the jury that
the defendant committed not one but several crimes and thus may suggest
that the alleged criminal activity is of greater scope and gravity than it
actually is. See, e.g., United States v. Street, 66 F.3d 969, 975 (8th
Cir. 1995). The usual test for multiplicity is whether each count
requires proof of a fact that the other does not; if not, the charges are
not multiplicitous. See, e.g., United States v. Marquardt, 786 F.2d 771,
778 (7th Cir. 1986).
As the government points out, a charge under § 401(3) requires
proof that the defendant willfully violated a court order of reasonable
specificity (here, the order to testify), whereas a charge under §
1503 requires proof that the defendant corruptly endeavored to obstruct
or impede the due administration of justice. In other words, an
obstruction charge requires proof an additional element or elements that
are not part of a criminal contempt charge. Thus on the face of things
the charges are not multiplicitous.
But some of the case law under § 1503 suggests that the differences
might be more apparent than real. First, the term "endeavor" as used in
the statute is the rough equivalent of "attempt"; it is meant to describe
"any effort or assay to accomplish the evil purpose that the section was
enacted to prevent." United States v. Russell, 255 U.S. 138, 143 (1921),
quoted in United States v. Aguilar, 515 U.S. 593, 610 (1995). Thus an
attempt to obstruct justice violates the statute, even if the attempt is
not possible of accomplishment. Osborn v. United States, 385 U.S. 323,
333 (1966), cited in Aguilar, 515 U.S. at 610.
The more significant point, however, at least for present purposes,
concerns the definition of "corruptly." The term is commonly defined in
§ 1503 cases as requiring that the defendant acted "with the purpose
of wrongfully impeding the due administration of justice." Seventh
Circuit Federal Jury Instructions (Criminal) § 1503 at p. 272
(1999). But there is authority that arguably reads this requirement out
of the statute (at least as it concerns a refusal-to-testify case), by
permitting corrupt intent to be established via the well-known concept
that a person may be deemed to have intended the natural and probable
consequences of his acts. See United States v. Cueto, 151 F.3d 620,
630-31, 633 (7th Cir. 1998) (approving a jury charge stating that to
prove the defendant acted "corruptly," the government "only has to
establish that the defendant should have reasonably seen that the natural
and probable consequences [sic] of his acts was the obstruction of
justice."); see also United States v. Gage, 183 F.3d 711, 718-19 (7th
Cir. 1999) (Posner, J., concurring) ("Deliberately to do something that
one knows will have a particular result is often in the criminal law
enough to establish the requisite intention to bring about that
result."). See generally United States v. Vaghela, 169 F.3d 729, 733 n. 3
(11th Cir. 1999) (noting an apparent Circuit split regarding the meaning
of the term "corruptly" in § 1503).
This discussion does not alter our conclusion that the § 1503
charge is not multiplicitous of the § 401(3) charge. But it does
highlight the need for careful consideration of the definition of
"corruptly" that will apply at trial, which in this particular case may
require that we forego use of the knowledge-of-consequences principle,
even though that principle may properly apply in other types of §
1503 cases. Cf United States v. Cintolo, 818 F.2d 980, 995 (1st Cir.
1987) (exact contours of what constitutes "corrupt" activity in violation
of § 1503 "must inevitably be drawn case-by-case"). See Cueto, 151
F.3d at 631 ("`Correct application of Section 1503 thus requires, in a
very real sense that the factfinder discern — by direct evidence or
from inference — the motive which led an individual to perform
particular actions. . . .'") (quoting Cintolo, 818 F.2d at 991). In this
regard, the Court is largely in agreement with the First Circuit's
treatment of this issue in United States v. Brady, 168 F.3d 574, 577-79
(1st Cir. 1999), in ...