U.S. v. Bashaw, 92-5152

• Decision Date: 18 November 1992
• Docket Number: No. 92-5152,92-5152
• Citation: 982 F.2d 168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ben Walter BASHAW, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 168

982 F.2d 168

UNITED STATES of America, Plaintiff-Appellee, v. Ben Walter BASHAW, Jr., Defendant-Appellant.

No. 92-5152.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 11, 1992.

Decided Nov. 18, 1992. ^*

Debra Teufel Phillips (argued), Mercedes C. Maynor-Faulcon, Asst. U.S. Attys. (briefed), Nashville, TN, for plaintiff-appellee.

Henry Haile (argued and briefed), Lyell, Seaman & Shelton, Nashville, TN, for defendant-appellant.

Before: KEITH and BATCHELDER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

Defendant Ben Walter Bashaw, Jr. appeals his conviction under 18 U.S.C. § 1503 for obstructing the due administration of justice by making threatening statements to two jurors who had served on the jury in his brother's trial. We reverse the district court's conviction of Bashaw because the statute does not apply to Bashaw's conduct.

I.

DeWanda Lee and Everett Hutchens were jurors in the trial of United States v. Frederick Bashaw, which was held on September 3-4, 1991. Lee and Hutchens say that defendant Ben Bashaw, Frederick Bashaw's brother, was staring at the jurors while they sat in the jury box during the Frederick Bashaw trial and that the stares intimidated and frightened them. A court security officer also indicated that a spectator at the trial was staring at the jurors during the trial, but did not identify Bashaw as the person doing the staring. The jury returned a guilty verdict against Frederick Bashaw for possession of cocaine. After the verdict was returned, jury foreman Hutchens and juror James Elliott proceeded to the Clerk's Office. As they were about to enter the office, defendant Ben Bashaw walked by with a group of people. Hutchens testified that Bashaw said, "[T]here are two of the m_____-f______ there." Hutchens said that he advised someone in the Clerk's Office of Bashaw's remark. Elliott did not hear the remark, but noted that Hutchens was upset by it.

Defendant Bashaw then went outside the courthouse with the group. At that time, Juror Lee was sitting on the wall surrounding the courthouse. Lee contends that someone, although she could not identify who it was, said to her, "[T]here is the black bitch right there." Lee said defendant stared at her while the group walked down the street. She testified that the look was intimidating and that the encounter frightened her. Lee contends that while she was still sitting there, defendant drove by the courthouse slowly in a burnt orange Cadillac Seville with the windows down. Hutchens then came outside to wait with Lee until her ride arrived, and he saw a Jeep and the same Cadillac drive by the courthouse. This time, however, Lee contends that she could not identify the driver because the windows, which were now opened only a crack, were tinted. Hutchens then went inside the building to report the matter to court security personnel. A security officer came out to ask Lee to come inside the courthouse. As the security officer was talking to Lee, he and Lee saw the Cadillac drive by again. Lee went back into the courthouse and waited there until her ride arrived.

Bashaw and his family and friends testified that Bashaw did not make the comments alleged. Several witnesses also testified that they went home with Bashaw and that he did not circle the courthouse, but merely drove down the street once on the way home. Defendant argued that the government's witnesses mistook Bashaw's car because his car does not have tinted windows as the car identified by the witnesses had.

On September 25, 1991, a grand jury indicted defendant on a four-count indictment for violations of 18 U.S.C. § 1503. Counts 1 and 3 alleged that defendant corruptly or by threats endeavored to influence intimidate or impede Lee and Hutchens "in the discharge of [their] duties as [ ] petit juror[s]...." Counts 2 and 4 alleged that defendant corruptly or by threats endeavored to "influence, obstruct, or impede the due administration of justice" in the Frederick Bashaw case with threatening communications to Lee and Hutchens. After defendant waived a jury trial, the district court heard testimony on the case. On a motion for Judgment of Acquittal, the court dismissed Counts 1 and 3, stating that "there is no way that things that occurred after the verdict was returned could constitute an impeding or intimidation of a juror in the discharge of their duties." The court explained that he was not dismissing Counts 2 and 4 because "[t]he due administration of justice does include what occurs after the verdict is over. The due administration of justice includes the protection of the integrity of the process and protection of the integrity of the individual jurors, even though they may have concluded their duties." At the close of evidence, the district court found defendant guilty on Counts 2 and 4. Bashaw was sentenced to 37 months on each count, to be served concurrently. On December 17, 1991, defendant filed a Motion to Arrest Judgment and a Renewed Motion for Judgment of Acquittal, which the district court denied. On December 19, 1991, defendant filed a motion for new trial or for further hearing. This motion was also denied. Defendant now appeals his conviction.

II.

Section 1503 states:

§ 1503. Influencing or injuring officer or juror generally

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or 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, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. § 1503. Defendant was convicted under "the omnibus clause" of section 1503, which is the third phrase of the statute: "[W]hoever ... 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...." Id. § 1503. The statute has a mens rea requirement that limits the scope to those who "corruptly" or intentionally seek to obstruct justice. United States v. Jeter, 775 F.2d 670, 675 (6th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1796, 90 L.Ed.2d 341 (1986). This requires that one impede the due administration of justice with "the general intent of knowledge as well as the specific intent of purpose to obstruct." Id. at 679. " 'The key words in the statute [section 1503] are "corruptly" and "endeavors." ' The statutory language clearly encompasses 'endeavors' or attempts to obstruct the administration of justice regardless of the success in actual obstruction." Id. at 675 (citations omitted). Because section 1503 is intended to "protect the administration of justice in federal court and those participating therein," due administration of justice has been interpreted as extending only to pending judicial proceedings. United States v. Wood, 958 F.2d 963, 974 (10th Cir.1992), amended, 1992 WL 58305 (10th Cir.1992); United States v. Neal, 951 F.2d 630, 632 (5th Cir.1992) (pending judicial proceeding required). In addition, the defendant must have knowledge that a proceeding is pending. Pettibone v. United States, 148 U.S. 197, 205, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893) (predecessor to section 1503); United States v. Vesich, 724 F.2d 451, 454 (5th Cir.1984).

III.

Defendant first argues that Counts 2 and 4 of the indictment are invalid because they fail to state a violation of 18 U.S.C. § 1503. He contends that the "omnibus clause" of section 1503, prohibiting attempts corruptly to influence the due administration of justice, does not apply to conduct directed toward jurors. Bashaw points to the fact that this omnibus clause does not specifically mention jurors, as clauses 1 and 2 do.

This argument is without merit. The heading of section 1503, "Influencing or injuring officer or juror generally," clearly indicates that the entire section applies to jurors and officers. In addition, although the omnibus clause does not mention jurors or court officers in particular, the wording of the statute clearly applies to an attempt to threaten, influence or impede jurors as participants in the due administration of justice. As the Eleventh Circuit explained, "[t]he main body of the obstruction of justice statute specifically targets conduct that interferes with the duties of a juror or court officer. The omnibus clause is essentially a catch-all provision which generally prohibits conduct that interferes with the due administration of justice." United States v. Thomas, 916 F.2d 647, 650 n. 3 (11th Cir.1990). Therefore, we find that Counts 2 and 4 of the indictment are not invalid. ¹

IV.

Defendant next contends that the evidence is insufficient to support the conviction because a conviction under section 1503 requires proof of specific intent to influence corruptly the due administration of justice. Inasmuch as the jurors had completed their service in the Frederick Bashaw case and had been discharged, defendant Ben Bashaw asserts that he could not have influenced or had the specific intent to influence the due administration of justice. He also argues that the evidence was insufficient to pinpoint him as the one who made the statements.

We agree that the...