U.S. v. Thomas, 89-8477

• Decision Date: 06 November 1990
• Docket Number: No. 89-8477,89-8477
• Citation: 916 F.2d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio Lavere THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 647

916 F.2d 647

UNITED STATES of America, Plaintiff-Appellee, v. Antonio Lavere THOMAS, Defendant-Appellant.

No. 89-8477.

United States Court of Appeals Eleventh Circuit.

Nov. 6, 1990.

George O. Lawson, Jr., Atlanta, Ga., Howard Moore, Moore & Moore, Oakland, Cal., for defendant-appellant.

Wilmer Parker, III, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and ANDERSON, Circuit Judges, and GODBOLD, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Antonio Thomas, an attorney, appeals his conviction on one count of endeavoring to obstruct justice in violation of 18 U.S.C. Sec. 1503 by testifying falsely in a federal civil proceeding with knowledge of a pending grand jury investigation. The government concedes that a new trial is warranted because the trial court failed to charge the jury that the alleged false testimony had the effect of obstructing justice.

Thomas contends that the government is barred from retrying him on this count because there was insufficient evidence that his allegedly false testimony had such an effect. We hold that the trial court must instruct a jury that the government must prove the alleged statements had the natural and probable effect of obstructing justice. We reverse, however, because we conclude that the evidence was insufficient to support a conviction.

FACTS

Thomas was one of the many fish caught in the broad net the government cast over a narcotics trafficking enterprise that was managed and controlled by Rolland Callahan, Jr. ¹ The ninety-nine page, thirty-seven count indictment charged Callahan and sixteen other individuals with various offenses relating to the operation of the narcotics conspiracy and the concealment of its activities. Thomas, one of Callahan's attorneys, and Richard Rose, one of Callahan's accountants, were tried together on various counts relating to allegations that they assisted Callahan's narcotics enterprise in concealing, investing, and laundering drug proceeds. Following a jury trial, Rose was acquitted of all twenty of the counts with which he was charged. Thomas was acquitted of seventeen of the eighteen counts with which he was charged, including various counts of racketeering, conspiracy to possess with the intent to distribute drugs, conspiracy to defraud the United States, mail fraud, and money laundering. The sole count on which Thomas was convicted, obstruction of justice in violation of 18 U.S.C. Sec. 1503, is the subject of this appeal.

Because we are reviewing Thomas's conviction for sufficiency of the evidence, we present the facts in the light most favorable to the government. The section of the indictment relating to the obstruction of justice count alleged that Thomas

knowing there was a Federal Grand Jury investigating ROLLAND CALLAHAN, JR., [did] corruptly endeavor to influence, obstruct, and impede the due administration of justice by willfully, knowingly, intentionally, and falsely testify [sic] under oath in the civil trial of the State of Georgia v. Six Hundred Forty Thousand, Seven Hundred and Sixty-Eight Dollars in U.S. Currency, Case No. C85-1700A, then pending in the United States District Court, Northern District of Georgia, before the Honorable Horace T. Ward, United States District Judge.

The alleged false testimony which provided the entire basis for the obstruction of justice count was the following exchange before Judge Ward:

ROBERT WILSON [Attorney for Dekalb County]: Do you know the intervenor in this case, Mr. Rolland Callahan?

THOMAS: I know Rolland Callahan, yes.

WILSON: Have you ever known him by any other name other [sic] than Rolland Callahan?

THOMAS: No, I have not.

WILSON: Have you ever known him by the name of Robert Johnson?

THOMAS: No, I have not.

WILSON: Have you ever introduced him to anyone as Robert Johnson?

THOMAS: Not that I recall.

In an effort to prove that Thomas's testimony constituted the obstruction of justice, the government introduced evidence attacking the truthfulness and accuracy of Thomas's assertions. The evidence revealed that Callahan had used the name of his wife's ten year old son, Robert Johnson, in negotiating a shopping center construction contract with Weyman Bearden, a builder. Subsequently, Callahan had entered into another contract with Bearden for the construction of a new home. Callahan brought the contract he negotiated with Bearden for the home to Thomas, and informed Thomas that he wanted the home to be in the name of Robert Johnson. In a meeting at Thomas's office where the contract The government presented no evidence, however, that Thomas introduced Callahan to Bearden as Robert Johnson or at any other time represented Callahan to be Robert Johnson. In fact, the government's prime witness, Rolland Callahan, testified that Thomas never introduced him to anyone by any name other than "Mr. Callahan or Cal." Additionally, Callahan testified that he had not informed Thomas that he was representing himself to Bearden as Robert Johnson. ² Callahan's wife, Jamie Willis Callahan, also testified for the government and stated that she had not told Thomas that she and her husband were holding themselves out as Mr. and Mrs. Robert Johnson.

was signed by Thomas as the attorney for Robert Johnson, Bearden referred to Callahan and his wife as Mr. and Mrs. Johnson. Bearden testified that, based upon his prior transaction with Callahan, he believed Callahan to be Robert Johnson. Thomas, although present when Bearden referred to Callahan as Robert Johnson, made no effort to inform Bearden of Callahan's true identity.

The district court charged the jury that they could find Thomas guilty of the obstruction count if the government proved the following facts beyond a reasonable doubt:

First, that the federal grand jury and the federal district court were conducting proceedings [relating to Callahan]; second, that the defendant endeavored to influence, intimidate or impede such proceedings; and, third, that the defendant's acts were done knowingly and corruptly.

The court followed this instruction by stating that "it is not necessary for the government to prove that any grand juror or trial judge was in fact swayed or changed or prevented in any way from administering justice, only that the defendant corruptly attempted to do so." Thomas's appeal follows from his conviction on this count of obstructing justice.

DISCUSSION

The defendant was prosecuted under the omnibus clause of the obstruction of justice statute. ³ This clause subjects to criminal liability any individual who "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." 18 U.S.C. Sec. 1503. The omnibus clause is broad enough to encompass "any act committed corruptly, in an endeavor to impede or obstruct justice." Brand, 775 F.2d at 1465; see United States v. Silverman, 745 F.2d 1386, 1393 (11th Cir.1984); United States v. Griffin, 589 F.2d 200, 203 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 48, 62 L.Ed.2d 32 (1979). ⁴

In order to convict an individual under the omnibus clause, the government must prove that he (1) corruptly or by threats, (2) endeavored, (3) to influence, obstruct, or impede the due administration of justice. Brand, 775 F.2d at 1465; United States v. Perkins, 748 F.2d 1519, 1528 (11th Cir.1984); Silverman, 745 F.2d at 1392. "Corruptly" describes the specific intent of the crime and can vary in meaning with the context of the section 1503 prosecution. Brand, 775 F.2d at 1465. Generally, the government must show that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result. Silverman, 745 F.2d at 1393. Although the government is not required to prove that the defendant had the specific purpose of obstructing justice, Silverman, 745 F.2d at 1393, it must establish that the conduct was prompted, at least in part, by a "corrupt motive." Brand, 775 F.2d at 1465; United States v. Howard, 569 F.2d 1331, 1336 n. 9 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978).

The "endeavor" element of the offense describes any attempt or effort to obstruct justice. See Brand, 775 F.2d at 1465. It is not necessary that an individual succeed in actually obstructing justice to violate section 1503. Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434-35, 17 L.Ed.2d 394 (1966); see United States v. Fields, 838 F.2d 1571, 1575 (11th Cir.1988). As the Eleventh Circuit noted in Silverman, "a section 1503 offense is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded." 745 F.2d at 1395 (emphasis original).

The final element of a section 1503 violation describes the characteristics of the conduct prohibited by the statute. Under the omnibus clause, an individual is prohibited from engaging in any activity constituting an effort to influence, obstruct, or impede the due administration of justice. The action taken by the defendant does not need to directly and immediately obstruct justice to be prohibited by section 1503. The defendant's conduct must be such, however, that its natural and probable effect would be the interference with the due administration of justice. Fields, 838 F.2d at 1573; Silverman, 745 F.2d at 1393; see Brand, 775 F.2d at 1465 (statute only proscribes conduct "which produces or which is capable of producing an effect that prevents justice from being duly administered") (emphasis original); Perkins, 748 F.2d at 1528-29 (false statement must be such that it could have "effect of impeding justice" to constitute violation of statute); Griffin, 589 F.2d at 204 (same); Howard, 569...