United States v. Ermoian, No. 11-10124, 2013 WL 4082072 (9th Cir. August 14, 2013)
Obstruction of Justice, the catch all crime, has been overused by both the federal and state governments. When a person is “obviously guilty” or asking questions the police do not wish to answer, they hand out Obstruction charges like candy.
In this interesting case – in which the court admitted sounds like an episode of Sons of Anarchy – the court concluded that an FBI investigation does not qualify as an “official proceeding” under the federal obstruction of justice statute. Score one for the defense.
Defendants Ermoian and Johnson were charged with obstruction of justice under 18 U.S.C. §1512 (c)(2), (k) when they each warned the FBI’s target, Holloway – a known associate of the Hells Angels – that he was under investigation. After their warnings, Holloway searched his motorcycle store and disposed of questionable parts. Holloway, together with the defendants, conducted preventative canine sniffs, counter-surveillance, and attempted to ferret out informants.
The FBI Task Force arrested the defendants at the close of their investigation in 2008, so as not to tip off the real targets. Johnson and Ermoian were charged with conspiracy to “corruptly obstruct, influence, and impede an official proceeding, to wit, a law enforcement investigation conducted by the Federal Bureau of Investigation” in violation of 18 U.S.C. §1512 (c)(2), (k).The District Court held that “official proceeding” as used in the statute should be read broadly to include an FBI investigation. The Ninth Circuit disagreed and found that:
- “Official proceeding” is defined in 18 U.S.C. §1515(a)(1). The only part of the definition that could be construed to include an investigation is a “proceeding before a Federal Government agency which is authorized by law” 18 U.S.C. §1515 (a)(1)(C).
- The dictionary definition alone could not resolve the issue because there is both a legal usage and a lay definition. The lay definition could mean an action or series of actions while the legal usage suggests a formal hearing in front of a judge.
- The descriptor “official” indicates a formality normally associated with legal proceedings and not just a mere action or series of actions.
- Because “Proceeding” is surrounded by the legal usage of terms such as “judge or court,” it supports the notion that a mere criminal investigation does not qualify as one.
- The Fifth Circuit was correct in holding that the use of the preposition “before” in connection with the term “Federal Government agency” implies that an official proceeding involves “some formal convocation of the agency in which parties are directed to appear, instead of any informal investigation conducted by any member of the agency.” United States v. Ramos, 537 F.3d 439, 462-63 (5th Cir. 2008).
- A criminal investigation is not conducted before a Federal Government agency, but by the agency in the field.
Therefore, the court held that an FBI investigation is not an “official proceeding” under 18 U.S.C. §1512 (c)(2), (k) and the case was reversed and remanded. The legislature will most likely remedy this by amending the statute to include investigations. But until then a few less people might be jailed using Obstruction as an excuse to do so.