569 F.2d 1331 (5th Cir. 1978), 77-5286, United States v. Howard

Docket Nº77-5286.
Citation569 F.2d 1331
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Herbert A. HOWARD and Elmer Gary Ritter, Defendants-Appellants.
Case DateMarch 23, 1978
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1331

569 F.2d 1331 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Herbert A. HOWARD and Elmer Gary Ritter, Defendants-Appellants.

No. 77-5286.

United States Court of Appeals, Fifth Circuit

March 23, 1978

Page 1332

Ralph W. Brewer, Baton Rouge, La., for Howard.

Bryan E. Bush, Jr., Baton Rouge, La., for Ritter.

Donald L. Beckner, U. S. Atty., George D. Hardy, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before INGRAHAM, GEE and TJOFLAT, Circuit Judges.

GEE, Circuit Judge:

Herbert Howard and Gary Ritter were convicted of conspiring to obstruct the "due administration of justice" under 18 U.S.C.

Page 1333

§ 1503. Their specific offense was an attempt to sell transcripts of secret grand jury testimony to persons under investigation for suspected violations of federal banking laws. Aside from several minor contentions, which we will discuss later, defendants' various arguments on appeal boil down to the same complaint: that the statute under which they were charged and convicted does not cover the sale of grand jury testimony, or at least does not do so with the clarity demanded by the due process clause.

Section 1503 can be divided into two parts: its specific language, which forbids the influencing, intimidation, or impeding of any witness, juror, or court official, and its concluding omnibus clause, which punishes the influencing, obstruction, or impeding of the due administration of justice. 1 Invoking ejusdem generis, defendants argue that the statute's specific language limits the omnibus clause so that "obstructing the due administration of justice" means influencing witnesses, jurors, and officials in ways other than, and similar to, those expressly enumerated in the first part of the section. Only one court has so applied ejusdem generis to section 1503, reading the omnibus clause to prohibit acts similar in manner to those prescribed by the statute's specific language. See United States v. Metcalf, 435 F.2d 754, 756-57 (9th Cir. 1970). 2 We cannot agree with this reading of the statute because it renders the omnibus clause superfluous, see United States v. Walasek, 527 F.2d 676, 679 & n.11 (3d Cir. 1975), and because the most natural construction of the clause is that it prohibits acts that are similar in result, rather than manner, to the conduct described in the first part of the statute. 3 Whatever can be

Page 1334

accomplished through intimidating or influencing a witness, juror, or court official is labeled by section 1503 as an obstruction of justice, for the reason that each of these actors has certain duties imposed by law, and the interference with his performance of these duties necessarily disrupts the processes of the criminal justice system. 4 Crucial to an understanding of the instant case is the realization that this same interference can occur despite the absence of any personal contact with a juror, witness, or official. For example, persons violate section 1503 when they destroy evidence relevant to a judicial proceeding, 5 which demonstrates that the statute is concerned not only with protecting witnesses, jurors, and court officials but also with preventing "miscarriage(s) of Justice." Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). See note 3 supra. Using threats to prevent a grand jury witness from testifying has the result of destroying evidence; so does the burning of transcripts of that testimony, and both acts obstruct the administration of justice. The use of threats against a witness falls under the specific language of section 1503, while the destruction of documents comes under the omnibus clause.

Ample authority supports our reading of the statute. Language in United States v. Partin, 552 F.2d 621, 631 (5th Cir.), cert. denied, --- U.S. ----, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), suggests that the specific wording of section 1503 was intended to forbid certain means of obstructing justice, while the omnibus clause aims at obstruction of justice itself, regardless of the means used to reach that result. 6 Accord

Page 1335

United States v. Siegel, 152 F.Supp. 370, 373 (S.D.N.Y.1957), aff'd, 263 F.2d 530 (2d Cir.), cert. denied, 359 U.S. 1012, 79 S.Ct. 1147, 3 L.Ed.2d 1035 (1959). Similarly, in Cole v. United States, 329 F.2d 437 (9th Cir.), cert. denied, 377 U.S. 954, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964), the court quoted with approval the following statement from the appellant's brief: " 'the limitation on the literal language of the statute (18 U.S.C. § 1503) must be that only that is proscribed which produces or which is capable of producing an effect that prevents justice from being duly administered.' " 329 F.2d at 439 (emphasis deleted). Moreover, numerous cases have interpreted section 1503 as covering all interferences with the administration of justice regardless of the means employed. United States v. Walasek, 527 F.2d at 681, quoting United States v. Solow, 138 F.Supp. 812, 814 (S.D.N.Y.1956); United States v. Cohn, 452 F.2d 881, 882-83 (2d Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249 (1972); Falk v. United States, 370 F.2d 472, 476 (9th Cir. 1966), cert. denied, 387 U.S. 926, 87 S.Ct. 2044, 18 L.Ed.2d 982 (1967); Catrino v. United States, 176 F.2d 884, 887 (9th Cir. 1949); United States v. Rosner, 352 F.Supp. 915, 919 (S.D.N.Y.1972), aff'd, 485 F.2d 1213 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974) (holding attempt to obtain secret grand jury documents covered by section 1503). Accord United States v. Carlson, 547 F.2d 1346, 1359 n.13 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977) (stating that section 1503 proscribes "the directing of threats against witnesses or otherwise impeding the administration of justice").

Applying our interpretation of section 1503 to the instant case, we observe that the statute clearly forbids one to bribe or to coerce a judge into ordering disclosure of secret grand jury testimony. 7 To do so would constitute an interference with the performance of a duty imposed upon the judge by Rule 6(e) of the Federal Rules of Criminal Procedure, which dictates the secrecy of grand jury proceedings. The important reasons for enforcing this secrecy have been stated often:

"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958), quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954). Accord Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127 (1970); 1 C. Wright, Federal Practice & Procedure: Criminal § 106, at 170 (1969). If bribing a judge to disclose secret grand jury material constitutes an obstruction of

Page 1336

justice, then so does appropriation and disclosure of that material, for the result is the same, the secrecy of the proceeding is breached. The accomplishment of this result through threats or bribes falls within the specific language of section 1503, while violating the secrecy of the proceeding by selling the confidential matter comes under the omnibus clause, which proscribes any conduct that has the same effect as the specific acts enumerated in the first part of section 1503.

Our interpretation of section 1503 as applied to this case is confirmed by legislative history. Section 1503 originated as the second section of the Act of March 2, 1831, 4 Stat. 487. The first section of that Act is now 18 U.S.C. § 401. The purpose of the entire Act was to punish various conduct committed in contempt of court; present section 401 was intended to cover contempts that occurred within the court's presence, while present section 1503 was aimed at out-of-court contempts. United States v. Harris, 558 F.2d 366, 368 (7th Cir. 1977); United States v. Walasek, 527 F.2d at 680; United States v. Essex, 407 F.2d 214, 216-17 (6th Cir. 1969). In its current form, section 401 proscribes disobedience or resistance to a court rule, such as Rule 6(e), which requires grand jury proceedings to be secret. Since Howard and Ritter defied Rule 6(e) by selling the transcripts, they committed a contempt as defined by section 401, see United States v. Friedman, 445 F.2d 1076, 1078 (9th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971) (indictment and conviction under section 401 for possessing and disclosing unreleased grand jury transcripts); and since their contempt was perpetrated out of court, it falls within the prohibitions of section 1503. See Nye v. United States, 313 U.S. 33, 48-49, 61 S.Ct. 810, 85 L.Ed. 1172 (1941). 8

If the key to the meaning of section 1503 were embedded in the legislative history just discussed, we would tend to agree with the defendants' claim that the statute, as applied to them, is unconstitutionally vague. 9 The legislative history, however, serves merely to confirm the natural construction of the statute, upon which we elaborated earlier....

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54 practice notes
  • 532 F.Supp. 1169 (N.D.Ill. 1981), 81 C 3432, Quilici v. Village of Morton Grove
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • December 29, 1981
    ...544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See United States v. McCauley, 601 F.2d 336 (8th Cir. 1979); United States v. Howard, 569 F.2d 1331 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). Plaintiff has failed to present an issue of the meaning of the......
  • 745 F.2d 1386 (11th Cir. 1984), 82-5903, United States v. Silverman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • November 5, 1984
    ...(1976). Section 1503 forbids interferences with the due administration of justice, i.e., judicial procedure. United States v. Howard, 569 F.2d 1331, 1337 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). The statute reaches all corrupt conduct capable of producing......
  • 414 So.2d 1089 (Fla.App. 3 Dist. 1982), 81-592, Deehl v. Knox
    • United States
    • Florida Florida Court of Appeals Third District
    • May 11, 1982
    ...Trushin v. State, supra, at 384 So.2d 674; see United States v. Griffin, 589 F.2d 200, 206 (5th Cir. 1979); United States v. Howard, 569 F.2d 1331, 1336, n. 9 (5th Cir. 1978), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1979). Here, as in Carricarte, supra, at 384 So.2d 1263, ......
  • 731 F.2d 1032 (2nd Cir. 1984), 673, In re Grand Jury Subpoena Duces Tecum Dated Sept. 15
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • March 27, 1984
    ...rather than generally to reach efforts to frustrate the intended effect of an already rendered judgment. See United States v. Howard, 569 F.2d 1331 (5th Cir.) ("Section 1503 does not forbid interferences with doing 'justice,' in the sense of 'fairness' and 'rightness,' although undoubt......
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46 cases
  • 532 F.Supp. 1169 (N.D.Ill. 1981), 81 C 3432, Quilici v. Village of Morton Grove
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • December 29, 1981
    ...544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See United States v. McCauley, 601 F.2d 336 (8th Cir. 1979); United States v. Howard, 569 F.2d 1331 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). Plaintiff has failed to present an issue of the meaning of the......
  • 745 F.2d 1386 (11th Cir. 1984), 82-5903, United States v. Silverman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • November 5, 1984
    ...(1976). Section 1503 forbids interferences with the due administration of justice, i.e., judicial procedure. United States v. Howard, 569 F.2d 1331, 1337 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). The statute reaches all corrupt conduct capable of producing......
  • 414 So.2d 1089 (Fla.App. 3 Dist. 1982), 81-592, Deehl v. Knox
    • United States
    • Florida Florida Court of Appeals Third District
    • May 11, 1982
    ...Trushin v. State, supra, at 384 So.2d 674; see United States v. Griffin, 589 F.2d 200, 206 (5th Cir. 1979); United States v. Howard, 569 F.2d 1331, 1336, n. 9 (5th Cir. 1978), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1979). Here, as in Carricarte, supra, at 384 So.2d 1263, ......
  • 731 F.2d 1032 (2nd Cir. 1984), 673, In re Grand Jury Subpoena Duces Tecum Dated Sept. 15
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • March 27, 1984
    ...rather than generally to reach efforts to frustrate the intended effect of an already rendered judgment. See United States v. Howard, 569 F.2d 1331 (5th Cir.) ("Section 1503 does not forbid interferences with doing 'justice,' in the sense of 'fairness' and 'rightness,' although undoubt......
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8 books & journal articles
  • The Supreme Court's bipolar approach to the interpretation of 18 U.S.C. 1503 and 18 U.S.C. 2232 (c).
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 Nbr. 4, June 1996
    • June 22, 1996
    ...the Omnibus Clause, which punishes efforts to influence, obstruct, or impede the due administration of justice. United States v. Howard, 569 F.2d 1331, 1333 (5th Cir. 1978), cert. denied, 439 U.S. 834 (1978). (3) The full text of 18 U.S.C. [sections] 2232(c) (1994) reads: Whoever, having kn......
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 32 Nbr. 2, January 1995
    • January 1, 1995
    ...1503 can be violated by person who gives false testimony to grand jury), cert. denied, 444 U.S. 825 (1979); United States v. Howard, 569 F.2d 1331, 1333-35 (5th Cir. 1978) (bribery of judge to disclose secret grand jury testimony violates Omnibus Clause of [sections] 1503); United States v.......
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 33 Nbr. 3, March 1996
    • March 22, 1996
    ...(Section 1503 is violated by person who gives false testimony to grand jury), cent denied, 444 U.S. 825 (1979); United States v. Howard, 569 F.2d 1331, 1333-35 (5th Cir. 1978) (bribery of judge to disclose secret grand jury testimony violates Omnibus Clause of [sections] 1503); United State......
  • Obstruction of justice.
    • United States
    • American Criminal Law Review Vol. 34 Nbr. 2, January 1997
    • January 1, 1997
    ...F.2d 200, 205 (5th Cir. 1979) ([sections]1503 is violated by person who gives false testimony to grand jury); United States v. Howard, 569 F.2d 1331, 1333-35 (5th Cir. 1978) (bribery of judge to disclose secret grand jury testimony violates Omnibus Clause of [sections] 1503); Walasek, 527 F......
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