U.S. v. Barfield, 92-6217

• Decision Date: 02 September 1993
• Docket Number: No. 92-6217,92-6217
• Citation: 999 F.2d 1520
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth W. BARFIELD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1520

999 F.2d 1520

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth W. BARFIELD, Defendant-Appellee.

No. 92-6217.

United States Court of Appeals, Eleventh Circuit.

Sept. 2, 1993.

Deborah A. Griffin, Asst. U.S. Atty., Mobile, AL, Thomas E. Booth, Dept. of Justice, Washington, DC, for plaintiff-appellant.

Thomas Boller, Mobile, AL, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before KRAVITCH and HATCHETT, Circuit Judges, and ATKINS ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

The scope of the federal obstruction of justice statute, 18 U.S.C. § 1503, ¹ is the primary issue in this case. The government appeals the district court's grant of a judgment of acquittal, which was entered pursuant to Fed.R.Crim.P. 29(c) after the jury returned a guilty verdict. We REVERSE and REMAND.

BACKGROUND

Appellee Kenneth Wayne Barfield was a confidential informant (CI) for the government, specifically the Drug Enforcement Administration (DEA). Barfield worked for the DEA in connection with its investigation of Donald Flores for growing marijuana. Barfield had met Flores while both men were incarcerated in federal prison. As part of his role as a CI, Barfield surreptitiously taped conversations he had with Flores. Barfield also allegedly helped Flores and another man plant marijuana. The government indicted Flores for possession, manufacture, and distribution of marijuana, largely as a result of the information and evidence obtained by Barfield.

After Flores was indicted, Barfield contacted Flores's attorney, Wesley Blacksher. Barfield told Blacksher that he had information concerning the case against Flores, and gave Blacksher a hand-made map of the property on which Flores was growing marijuana. The map allegedly demonstrated that the search warrant used by the DEA did not cover the property from which the marijuana was actually seized. The next time they met, Barfield told Blacksher in an unsworn statement that Flores was not involved in marijuana growing and that Barfield could prove it. Blacksher later testified that Barfield also claimed that the government was hiding evidence.

Subsequently, Blacksher arranged for Barfield to give a sworn statement to a court reporter. In that statement Barfield made assertions that were inconsistent with what he had told DEA agents earlier. For example, Barfield stated that he had not seen Flores grow marijuana and that he had never helped Flores grow marijuana. In addition to these statements, Barfield also told Blacksher about a letter written by a federal judge that described Barfield as the least credible witness that judge had ever seen. Barfield spoke with and attempted to speak with Blacksher on numerous other occasions.

After learning about Barfield's contacts with Blacksher, the government decided not to call Barfield as a witness in Flores's trial. Furthermore, because Barfield was the only person who could authenticate the tape recorded The government subsequently indicted Barfield, alleging that he violated 18 U.S.C. § 1503 by "providing false information to the attorney representing Donald Lee Flores so that such false information could be used to impeach Kenneth Wayne Barfield's testimony in the trial of" Flores. ² In short, the government claimed that Barfield's conduct in giving the false statements to Blacksher was designed to provide Blacksher with impeachment evidence, thus making Barfield's testimony less credible, rendering Flores's conviction less likely and impeding the due administration of justice. Concerning appellee's motives, Blacksher testified that during the course of his contacts with Barfield, Barfield sought money from Flores. The government alleged that these requests were part of the motive for Barfield's action. Barfield contended that the DEA had instructed him to obtain information about Flores's assets for possible forfeiture and his requests for money stemmed from that instruction.

                conversations between Flores and Barfield, the government did not introduce those tapes at Flores's trial as it was concerned that Blacksher would have sought to impeach Barfield with the information Barfield had given him.   Because the tapes were not introduced and all of the evidence pertaining to one particular offense was contained on the tapes, the government dismissed one of the charges against Flores.   Flores was convicted on two drug offenses
                

A jury found Barfield guilty of violating 18 U.S.C. § 1503. Barfield moved for a new trial, claiming that the evidence was insufficient to support a conviction. The district court treated the motion as one for acquittal and granted it. 781 F.Supp. 754. According to its order, the district court issued the judgment of acquittal on two primary grounds: 1) that giving false/inconsistent statements is insufficient to warrant a section 1503 conviction; and 2) that Barfield did not act "corruptly" as required by the statute. The government filed a motion for reconsideration which the court denied. This appeal followed.

DISCUSSION

When evaluating a motion for judgment of acquittal, the "district court must determine whether the relevant evidence, viewed in a light most favorable to the Government, could be accepted by a jury as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.1980); ³ see also United States v. Greer, 850 F.2d 1447, 1450 (11th Cir.1988). The district court must accept all reasonable inferences tending to support the government's case. United States v. Burns, 597 F.2d 939, 941 (5th Cir.1979). "Likewise, any conflicts in the evidence are to be resolved in the Government's favor." United States v. Taylor, 972 F.2d 1247, 1250 (11th Cir.1992) (citation omitted). In reviewing a district court's disposition of a motion for judgment of acquittal, the appellate court considers the same factors that guided the district court. Id. (citation omitted). The appellate court's role in this situation is comparable to its role in considering sufficiency of the evidence, and the district court's decision to grant a judgment of acquittal is entitled to no deference. Id. (citations omitted).

Barfield was convicted of the specific portion of 18 U.S.C. § 1503, known as the omnibus clause, which deals with a person who "corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice." This court has considered this section of § 1503 previously. It is clear that the "omnibus clause is broad enough to encompass 'any act committed corruptly, in an endeavor to impede or obstruct justice.' " United States v. Thomas, 916 F.2d 647, 650 (11th Cir.1990) (quoting United States v. Brand, 775 F.2d 1460, 1465 (11th Cir.1985)) (citations omitted). In order to obtain a conviction under the omnibus clause, the government must prove that the defendant (1) endeavored, (2) to influence, obstruct or impede the due administration of justice; (3) in a corrupt manner or by threats. Id.

The "endeavor" component of the offense "describes any effort or assay" to obstruct justice. Brand, 775 F.2d at 1465. ⁴ Success is not a necessary component of a sufficient section 1503 violation. Thomas, 916 F.2d at 651 (citing Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434-35, 17 L.Ed.2d 394 (1966)) (citation omitted). In fact, this court has held that "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." United States v. Silverman, 745 F.2d 1386, 1395 (11th Cir.1984) (emphasis in the original).

Concerning the actual conduct prohibited by the statute, an individual may not participate in an activity that is 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." Thomas, 916 F.2d at 651 (citations omitted).

False testimony may provide the basis for a section 1503 conviction. Thomas, 916 F.2d at 652. Yet the Supreme Court has stated clearly that not all false or evasive testimony comprises an obstruction of justice. In re Michael, 326 U.S. 224, 227-28, 66 S.Ct. 78, 79-80, 90 L.Ed. 30 (1945). In fact, this court has held that perjury alone is insufficient to sustain a section 1503 conviction. United States v. Perkins, 748 F.2d 1519, 1528 (11th Cir.1984). "To show an obstruction of justice based on false testimony, the government must establish a nexus between the false statements and the obstruction of the administration of justice. Although, as in any section 1503 prosecution, the government need not show that the false statements actually obstructed justice, it is incumbent on the government to prove that the statements had the natural and probable effect of impeding justice." Thomas, 916 F.2d at 652 (citations omitted).

The Eleventh Circuit considered a section 1503 omnibus clause prosecution in United States v. Brand, 775 F.2d 1460 (11th Cir.1985). The Brand defendants tried to convince a witness to sign a statement asserting that the witness knew that the car he bought from the defendants had had the odometer rolled back. The witness refused, stating that all he knew was that the odometer reading was not guaranteed by the defendants. The government had indicated that it would have dropped or reduced the charges against the defendants if they had succeeded in obtaining the witness's signature on the statement. 775 F.2d at 1462. The Brand court reversed a section 1503 conviction against the defendants in part because no false statement was ever given to ...