Wednesday, April 13, 2011
Today the jury convicted Barry Bonds of one count of obstruction of justice in violation of 18 USC §1503 but deadlocked on three counts of perjury in violation of 18 USC §1623(a). Being a professor of criminal law by profession, and a baseball fan by birth (I was born in St. Louis!), I could not help doing a little poking around the issues that are now sure to arise, and that those you teaching criminal law or procedure this term may find of interest to students if not colleagues.
Under the guidelines, apparently obstruction under 28 USC 1503 carries a base offense level of 14. For an offender with no priors the grid recommends 15-21 months; that's in Zone D of the grid meaning probation is not authorized by the guidelines. Of course the guidelines are not strictly binding on the judge anymore.
There are two plausible add-ons to the offense level, to wit:
2J1.2. . . (2)If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.
(3)If the offense (A) involved the destruction, alteration, or fabrication of a substantial number of records, documents, or tangible objects; (B) involved the selection of any essential or especially probative record, document, or tangible object, to destroy or alter; or (C) was otherwise extensive in scope, planning, or preparation, increase by 2 levels.
“Substantial interference” and “otherwise extensive in scope, planning, or preparation” are pretty plastic terms, so a three point increase in offense-severity is not inconceivable. At 17 points the grid prescribes 24-30 months for an offender in criminal history category I.
I suppose it goes without saying that an obstruction conviction following trial is a poor candidate for a “substantial assistance” adjustment!
More interesting is the relationship between the count of conviction and the other three. Here’s the obstruction count in the indictment:
COUNT FIVE: (18 U.S.C. 5 I503 - Obstruction of Justice)
18. The factuaI allegations contained in paragraphs one through nine above are incorporated herein as if set forth in full.
19. On or about December 4,2003, in the Northern District of California, and elsewhere, the defendant, BARRY LAMAR BONDS, unlawfully, willfully, and knowingly, did corruptly endeavor to influence, obstruct, and impede the due administration of justice, by knowingly giving Grand Jury testimony that was intentionally evasive, false, and misleading, that is:
(a) The false statements made by the defendant as charged in Counts 1-4 of this indictment; and
(b) Evasive and misleading testimony.
All in violation of Title 18, United States Code, Section 1503.
So the conduct alleged in the obstruction count includes the conduct alleged in the three perjury counts on which the jury hung, plus “[e]vasive and misleading testimony.” What about double jeopardy / compulsory joinder?
In United States v. Langella, 776 F.2d 1078 (2d Cir. 1985) the Second Circuit, per Feinberg CJ, ruled:
Comparison of the statutory provisions at issue here establishes that perjury and obstruction of justice are distinct offenses under the Blockburger analysis. The definitions of perjury and of obstruction of justice each require proof of elements that the other does not. To show perjury, the government must demonstrate the falsity and materiality of a witness' statements. 18 U.S.C. § 1623. Neither element is needed to prove obstruction of justice under 18 U.S.C. § 1503. Under that section, the government need only establish that a witness has deliberately attempted to frustrate a grand jury's investigation, see United States v. Alo, 439 F.2d 751, 754 & n. 4 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971), not that the statements made were false or material. Conversely, to convict under section 1623, the government need not prove that a defendant has obstructed the administration of justice. As each offense requires proof of an element that the other does not, imposition of consecutive sentences for perjury and for obstruction of justice does not run afoul of the principle stated in Blockburger. See United States v. Bridges, 717 F.2d 1444, 1448-51 (D.C.Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 708 (1984).
This seems a little too quick for me, because the obstruction statute applies even where defendant unsuccessfully “endeavors” to obstruct, and it is hard to visualize perjury where that would not be the case. Note how the Langella court slides from “the government need only establish that a witness has deliberately attempted to frustrate” under the obstruction statute to “the government need not prove that a defendant has obstructed’ under the perjury statute. Perhaps perjury before Congress or the like might not constitute an endeavor to obstruct, but I think there’s fighting ground here for the defense.
In any event Bonds now stands convicted of obstruction but he has not been acquitted of the perjury charges. He can oppose retrial on the double jeopardy point and if he loses in district court he would have the right to an interlocutory appeal on the double jeopardy claim. His lawyers, if no one else, have come out winners.