527 F.2d 676 (3rd Cir. 1975), 75--1436, United States v. Walasek

Docket Nº:75--1436.
Citation:527 F.2d 676
Party Name:UNITED STATES of America, Appellee, v. Paul WALASEK, Appellant.
Case Date:December 30, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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527 F.2d 676 (3rd Cir. 1975)

UNITED STATES of America, Appellee,

v.

Paul WALASEK, Appellant.

No. 75--1436.

United States Court of Appeals, Third Circuit

December 30, 1975

Argued Sept. 30, 1975.

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Robert E. J. Curran, U.S. Atty., John T. Thorn, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Stanley S. Arkin, Mark S. Arisohn, New York City, for appellant.

Before VAN DUSEN, HASTIE and HUNTER, Circuit Judges.

OPINION

JAMES HUNTER, III, Circuit Judge:

I

Appellant Walasek was convicted on one count of violating 18 U.S.C. § 1503 1 (obstruction of justice) and one count of conspiracy (18 U.S.C. § 371) to violate 18 U.S.C. § 1503. 2 The gravamen of the charge was that Walasek, a Vice-President and Regional Manager of WUI/TAS, Inc., caused certain records of that company to be destroyed after he had been advised that a federal grand jury subpoena duces tecum had been served upon the Company's Philadelphia office on June 21, 1974.

It is not disputed that records sought by the subpoena were destroyed by two Philadelphia employees of WUI/TAS, Inc., Panaro and Fetterman, 3 who worked under the general supervision of Walasek, or that Panaro discussed the subpoena over the telephone with Walasek (who was in New York City) during the hours between the receipt of the subpoena and the destruction of the documents. Appellant does not in fact contest the sufficiency of the evidence to support the findings which the trial court held would constitute the substantive crime. While Walasek does challenge the adequacy of the evidence to

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support the conspiracy count, we conclude that there was enough evidence to support a jury finding that Panaro and/or Fetterman possessed a state of mind consistent with a proscribed agreement with Walasek. 4

Of the other points of error raised by appellant, only two related contentions going to the interpretation of the obstruction of justice statute require discussion. 5

II

The parties agree that a pre-requisite for a conviction for obstruction of justice under the final clause of 18 U.S.C. § 1503 is the pendency of some sort of judicial proceeding which equates to an 'administration of justice.' Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 37 L.Ed. 419 (1893); United States v. Perlstein, 126 F.2d 789 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942). Where the parties disagree is on the question of when a grand jury investigation progresses to a stage where it can be said to be 'pending' so as to activate the sanctions of § 1503.

In the present case, it appears that, prior to June 21, the investigation of the business practices of WUI/TAS, Inc., had been assigned by the U.S. Attorney's office to a regularly sitting grand jury, that a witness had been called to testify before that grand jury concerning WUI/TAS, and that upon the witness' refusal to testify, a Petition for Immunity had been filed and granted. 6

Appellant would have us adopt a rigid rule that a grand jury proceeding is not 'pending' until a grand jury has actually heard testimony 7 or has in some way taken a role in the decision to issue the subpoena. He offers no authority for such a rule, and we are not inclined to adopt it. Appellant is correct in his observation that a grand jury subpoena may become an instrumentality of an investigative agency, without meaningful judicial supervision. Nevertheless, the remedy against potential abuses is not to establish a rule, easily circumvented, by which some formal act of the grand jury will be required to establish 'pendency.' The remedy is rather to continue to inquire, in each case, whether the subpoena is issued in furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated presentation of evidence before the grand jury. See United States v. Ryan, 455 F.2d 728 (9th Cir. 1972).

Without attempting to articulate any necessary minimum set of circumstances, we are persuaded that the present record is sufficient to establish the 'pendency' of a judicial proceeding. 8

III

The most difficult question raised by appellant is whether or not the type of conduct which he has been found to have engaged in is encompassed by § 1503. The argument is that even if an 'administration of justice' is considered to be 'pending,' the conviction cannot stand because the statute covers only efforts

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'to influence, intimidate, or impede' 9 directed against participants in the judicial proceedings.

This position has support in the language, at least, of United States v. Ryan, supra, United States v. Metcalf, 435 F.2d 754 (9th Cir. 1970), United States v. Essex, 407 F.2d 214 (6th Cir. 1969), and Haili v. United States, 260 F.2d 744 (9th Cir. 1958). These 'narrow' interpretations of § 1503 spring from the application, in Haili, of the 'ejusdem generis rule,' 10 which is said to require that the general concluding words of § 1503 be interpreted to include only actions similar to the enumerated interferences with witnesses, jurors, etc.

'The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of the word when there is uncertainty.' United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975), quoting from Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936). Under the circumstances here, we do not find this 'instrumentality' dispositive. Notwithstanding the rule, some acts other than those specifically enumerated in the first portion of § 1503 must be included in the prohibitions of the section if the concluding general language is to be given any meaning. 11 On the other hand, other acts, although arguably interfering with some aspect of the administration of justice, may be beyond the scope of § 1503 because the nexus to the progress of a judicial proceeding is too attenuated and the statutory construction therefore too strained. Our task then is to decide whether the specific conduct alleged in this case can fairly be said to be within the reach of the statute. 12

We start with the proposition, implicit from what has already been said, that the conduct charged to Walasek is within the literal meaning of the words of the statute. One who intentionally withholds or destroys tangible 'evidence' which he knows to be the target of a grand jury investigation can reasonably be said to be one who 'corruptly . . . obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice . . ..'

Of the cases involving a similar factual pattern, i.e., withholding or destruction of tangible evidence, only Ryan, supra,

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suggests that such conduct cannot fall within the scope of § 1503. Although that case adopts the ejusdem generis approach of Haili, supra, there is no discussion as to why the rule forecloses a conviction on these facts. More importantly, there were several other defects discussed in the Ryan case, e.g., failure to show (1) intent, (2) a pending proceeding, 13 or (3) the relevancy of the documents, any one of which would seem sufficient to support the court's result. Indeed, the ultimate holding of Ryan is not made clear; after discussing all of the above factors, the court concludes that '(t)he errors of the (trial) Court which we have pointed out require a reversal of the judgment (of conviction).' Id. at 735.

We do not believe that Ryan presents any persuasive reason to limit the scope of an important criminal statute, designed not only to protect participants in judicial proceedings but also to prevent miscarriages of justice. Catrino v. United States, 176 F.2d 884, 887 (9th Cir. 1949). The Ryan opinion intimates that the conduct in question constituted a contempt of court, properly punishable only under 18 U.S.C. § 401(3) 14 and/or Fed.R.Crim.Proc. 17(...

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