U.S. v. Tackett

• Decision Date: 23 June 1997
• Docket Number: 95-6128,Nos. 95-6127,s. 95-6127
• Citation: 113 F.3d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Linda TACKETT (95-6127); Grayson Tackett (95-6128), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 603

113 F.3d 603

UNITED STATES of America, Plaintiff-Appellee, v. Linda TACKETT (95-6127); Grayson Tackett (95-6128) Defendants-Appellants.

Nos. 95-6127, 95-6128.

United States Court of Appeals Sixth Circuit.

Argued Oct. 16, 1996.

Decided May 15, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied June 23, 1997.

A. Duane Schwartz, Asst. U.S. Attorney, Terry M. Cushing, Asst. U.S. Attorney, John L. Caudill, Asst. U.S. Attorney (briefed), David J. Hale (argued), Office of the U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

Samuel Manly (argued and briefed), Louisville, KY, for Defendants-Appellants.

Before: JONES, RYAN, and MOORE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

Linda and Grayson Tackett appeal their convictions and sentences in this case involving obstructing justice and making a false statement on a required firearm record. For the reasons discussed below, we affirm the convictions but remand both cases to the district court for resentencing.

I. FACTS

On December 6, 1991, appellants' son Brian Tackett burned down a church. ¹ In June of 1992 he and several others were charged with conspiracy to commit arson; Brian alone was accused and eventually convicted of arson, transporting a stolen vehicle, and carrying a firearm during a crime of violence.

Between the time that the younger Tackett was indicted and the date of his trial, his parents attempted to sabotage the government's firearms case by falsifying records and attempting to influence Steve Kirby, a potential witness in the case. The government accused Brian Tackett of carrying a .45 caliber pistol when he burned the church. He had obtained this gun sometime during the first few months of 1991 from Kirby, a licensed firearms dealer, but the sale had not been recorded in Kirby's transfer log, and the proper form (ATF Form 4473) had not been completed. J.A. at 247-49. See 27 C.F.R. §§ 178.124, 178.125(e) (required firearm records). In September of 1992, appellant Grayson Tackett paid Kirby a visit to ask him to complete a Form 4473 for the purchase, but to record him (Grayson) as the purchaser and December 16, 1991--ten days after the church burning--as the date of transfer. J.A. at 249. Kirby did not at the time realize the significance of the false date and agreed to falsify the form. Id. at 249-50.

In the spring of 1993 Linda Tackett visited Kirby and asked him for a copy of the falsified form 4473. Id. at 251-52. She gave the document to her son's lawyer, who then filed a motion to dismiss the firearm charge on the grounds that Brian could not have carried the pistol during the arson because it was still in Kirby's shop at the time. Id. at 252, 173-74. The form eventually found its way to Raymond Wilt, the ATF agent in charge of the arson investigation, who apparently suspected that the form had been falsified and decided to investigate. Id. at 168, 174-75. During the next week Wilt interviewed Kirby several times about the form. Kirby initially claimed that the form was correct, but, on March 4, when Wilt served him with a subpoena to appear before the grand jury that was investigating the accuracy of the form, Kirby came clean and told Wilt about the original sale and Grayson Tackett's visit. Id. at 175-81.

Wilt was apparently not satisfied that Kirby's new story was true. ² Id. at 182, 256. He instructed Kirby to arrange a meeting with the Tacketts and gave him two miniature tape recorders to use at that meeting. Id. at 183. The resulting recordings, which were played at trial, id. at 279-280, 303, made it clear that the new, not the old, story was the true one, and that the Tacketts were asking Kirby to perjure himself before the grand jury. In the March 7 meeting, for example, Kirby read aloud a letter that, according to his trial testimony, Linda Tackett had written and her husband had given him. Id. at 304-05. The letter instructed Kirby that "[a]ll you know is you never sold Brian Tackett any guns.... The only people that know the real truth are Grayson and me [Linda].... You had a .45 Colt to sell and sold it to Grayson Tackett on December 16th, 1991. It was in your possession prior to December 16th, so it couldn't have been anywhere else.... If Brian Tackett was ever at your office you don't remember it." Tape of March 7, 1993.

Wilt testified as to this evidence before the grand jury, which then handed down an indictment against the Tacketts for obstruction of justice and against Grayson Tackett for falsifying a required firearm record. ³ J.A. at 209, 23-24 (indictment). A jury convicted both defendants of obstruction of justice, under 18 U.S.C. § 1503, and Grayson of falsifying the ATF form, under 18 U.S.C. § 924(a)(1)(A). Id. at 29, 60 (judgments in criminal case). Appellants filed this timely appeal, giving us jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

A. Whether 18 U.S.C. § 1503 Prohibits Witness Tampering

The most complicated issue that appellants raise is whether the United States may prosecute their attempt to influence Kirby's anticipated testimony before the grand jury under 18 U.S.C. § 1503. The Second Circuit has held that the enactment of new witness protection laws in 1982 and 1988 means that the government must now prosecute witness tampering under the new law, 18 U.S.C. § 1512, rather than under § 1503. See United States v. Masterpol, 940 F.2d 760, 762 (2d Cir.1991). The other circuits that have addressed the issue have reached the opposite conclusion. See United States v. Maloney, 71 F.3d 645, 659 (7th Cir.1995) (noting that Fourth, Ninth, and Eleventh Circuits have held that the omnibus clause of § 1503 continues to cover witness tampering); United States v. Kenny, 973 F.2d 339, 342-43 (4th Cir.1992) (same for First, Fifth, Eighth, and Ninth Circuits). See also United States v. Aguilar, 515 U.S. 593, ---- & n. 1, 115 S.Ct. 2357, 2362 & n. 1, 132 L.Ed.2d 520 (1995) (declining to address issue). Cf. id. at ----, 115 S.Ct. at 2370 (Scalia, J., dissenting) (arguing that witness tampering can be prosecuted under § 1503). We agree with the majority of these courts that § 1503 continues to prohibit witness tampering.

Since its original enactment in 1948, § 1503 has contained both specific prohibitions against particular acts and a general "omnibus clause" providing for the punishment of any person who "corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." Act of June 25, 1948, ch. 645, 62 Stat. 769-70 (codified as amended at 18 U.S.C. § 1503(a)). See generally Aguilar, 515 U.S. at ---- - ----, 115 S.Ct. at 2361-62. The omnibus clause was intended to ensure that criminals could not circumvent the law's purpose by devising novel and creative schemes that would interfere with the administration of justice but would nonetheless fall outside the scope of § 1503's specific prohibitions. See United States v. Schaffner, 715 F.2d 1099, 1103 (6th Cir.1983). The clause has been used to prosecute both crimes that clearly fell within § 1503's more specific provisions and also conduct that those provisions could not reach. Compare Schaffner, 715 F.2d at 1103 (omnibus clause prohibits hiding witness even though such conduct is not covered by specific provisions); United States v. Faudman, 640 F.2d 20, 23 (6th Cir.1981) (upholding conviction for conduct not explicitly prohibited in specific provisions because "[u]nless something more than the precise acts listed in the earlier language was intended for inclusion, the 'omnibus' language of § 1503 would be surplusage"), with United States v. Neiswender, 590 F.2d 1269, 1272 n. 1 (4th Cir.1979) (upholding conviction under omnibus clause where "[t]he failure to indict under the first clause of [§ 1503] is unexplained"); Anderson v. United States, 215 F.2d 84, 87-88 (6th Cir.1954) (upholding conviction under omnibus clause for offering to alter witnesses' testimony).

The Tacketts do not claim that the omnibus clause never prohibited witness tampering; our prior decisions foreclose such an argument. See Schaffner, 715 F.2d at 1103; Faudman, 640 F.2d at 23; Anderson, 215 F.2d at 87-88. Appellants instead argue that when Congress enacted new protections for witnesses in 1982 and 1988 it intended that such crimes be punished only under the new provisions in 18 U.S.C. §§ 1512 & 1513, rather than under § 1503. We do not believe that Congress intended to preclude the use of the omnibus clause of § 1503 in such prosecutions.

As an initial matter, we note that the precise question before us is whether the 1982 and 1988 legislation in effect repealed the omnibus clause as it applies to witness tampering. Before 1982, we had interpreted the clause to prohibit such conduct; if we are now to change that view based on new legislation, it must be that the new law has repealed the old, either explicitly or by implication. This is the framework that Justice Brandeis used in United States v. Noveck, 273 U.S. 202, 206, 47 S.Ct. 341, 341-42, 71 L.Ed. 610 (1927), to address the similar argument that the enactment of a criminal statute prohibiting, inter alia, the filing of a false tax return meant that Congress intended that such conduct could no longer be punished under the general perjury statute. Id. ("The argument is that [the new statute] includes within its condemnation any one 'who willfully attempts in any manner to defeat or evade the tax imposed by this title'; that perjury to an income tax return is one manner or method of defeating or evading the tax; and that, since all methods are made punishable under [the new statute], Congress must have intended that perjury in making false returns should no longer be punishable under [the general perjury statute]."). Similarly, in United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941), the Court construed the question of whether a new statute limited the scope of a pre-existing criminal statute as one of...