OCTOBER TERM, 1994
Syllabus
UNITED STATES
v. AGUILAR
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 94-270. Argued March 20, 1995-Decided June 21, 1995
Respondent Aguilar, a United States District Judge, was
convicted of illegally disclosing a wiretap in violation of 18 U.
S. C. § 2232(c), even though the authorization for the particular
wiretap had expired before the disclosure was made. Because he lied
to Federal Bureau of Investigation (FBI) agents during a grand jury
investigation, he also was convicted of endeavoring to obstruct the
due administration of justice under § 1503. The Court of Appeals
reversed both convictions, reasoning that Aguilar's conduct in each
instance was not covered by the statutory language.
Held:
1. Uttering false statements to an investigating agent who might
or might not testify before a grand jury is not sufficient to make
out a violation of § 1503's prohibition of "endeavor[ing] to
influence, obstruct, or impede ... the due administration of
justice." The "nexus" requirement developed in recent Courts of
Appeals decisions-whereby the accused's act must have a
relationship in time, causation, or logic with grand jury or
judicial proceedings-is a correct construction of § 1503's very
broad language. Under that approach, the accused must take action
with an intent to influence such proceedings; it is not enough that
there be an intent to influence some ancillary proceeding, such as
an investigation independent of the court's or grand jury's
authority. Moreover, the endeavor must have the "natural and
probable effect" of interfering with the due administration of
justice, see,
e. g.,
United States v.
Wood,
6 F.3d
692, 695, and a person lacking knowledge that his actions are
likely to affect a pending proceeding necessarily lacks the
requisite intent to obstruct,
Pettibone v.
United
States, 148 U. S.
197,206-207. The Government did not show here that the FBI
agents acted as an arm of the grand jury, that the grand jury had
subpoenaed their testimony or otherwise directed them to appear, or
that respondent knew that his false statements would be provided to
the grand jury. Indeed, the evidence goes no further than showing
that respondent testified falsely to an investigating agent. What
use will be made of such testimony is so speculative that the
testimony cannot be said to have the "natural and probable effect"
of obstructing justice. Pp. 598-602.
594
Syllabus
2. Disclosure of a wiretap after its authorization expires
violates § 2232(c), which provides criminal penalties for anyone
who, "[1] having knowledge that a Federal ... officer has been
authorized or has applied for authorization ... to intercept a wire
... communication, [2] in order to obstruct, impede, or prevent
such interception, [3] gives notice or attempts to give notice of
the possible interception to any person." Contrary to the Court of
Appeals' holding, the statutory language does not require that the
wiretap application or authorization be pending or
in esse
at the time of the disclosure. Such a narrow purpose is not
evidenced by the term "such interception" in the statute's second
clause, which merely establishes that the defendant must intend to
obstruct the interception made pursuant to the application or
authorization of which he has the knowledge required by the first
clause. Similarly, the phrase "possible interception" in the third
clause was not designed to limit the punishable offense to cases
where the interception was factually "possible," but was intended
to recognize the fact that at the time the prohibited notice was
given it very likely could not be known whether or not there would
be an interception. Moreover, without the word "possible," the
statute would only prohibit giving notice of "the
interception":
It would not reach the giving of notice of an application which
has not yet resulted in an authorization or an authorization which
has not yet resulted in an interception. Finally, the statute need
not be read to exclude disclosures of expired wiretaps because of
concern that a broader construction would run counter to the First
Amendment. The Government's interest in nondisclosure by officials
in sensitive confidential positions is quite sufficient to justify
the construction of the statute as written, without any artificial
narrowing because of First Amendment concerns. pp. 602-606.
21 F.3d
1475, affirmed in part, reversed in part, and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined, in Part I of
which STEVENS, J., joined, and in all but Part I and the last
paragraph of Part II of which SCALIA, KENNEDY, and THOMAS, JJ.,
joined. STEVENS, J., filed an opinion concurring in part and
dissenting in part,
post, p. 606. SCALIA, J., filed an
opinion concurring in part and dissenting in part, in which KENNEDY
and THOMAS, JJ., joined,
post, p. 609.
James A. Feldman argued the cause for the United
States.
With him on the briefs were Solicitor General Days, Assistant
Attorney General Harris, Deputy Solicitor General Dreeben, and
Patty Merkamp Stemler.
595
Robert D. Luskin argued the cause for respondent. With
him on the brief were
Joseph G.
Davis and
Paul B.
Meltzer.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
A jury convicted United States District Judge Robert Aguilar of
one count of illegally disclosing a wiretap in violation of 18 U.
S. C. § 2232(c), and of one count of endeavoring to obstruct the
due administration of justice in violation of § 1503. A panel of
the Court of Appeals for the Ninth Circuit affirmed the conviction
under § 2232(c) but reversed the conviction under § 1503. After
rehearing en bane, the Court of Appeals reversed both convictions.
We granted certiorari to resolve a conflict among the Federal
Circuits over whether § 1503 punishes false statements made to
potential grand jury witnesses, and to answer the important
question whether disclosure of a wiretap after its authorization
expires violates § 2232(c). 513 U. S. 1013 (1994).
Many facts remain disputed by the parties. Both parties appear
to agree, however, that a motion for postconviction relief filed by
one Michael Rudy Tham represents the starting point from which
events bearing on this case unfolded. Tham was an officer of the
International Brotherhood of Teamsters, and was convicted of
embezzling funds from the local affiliate of that organization. In
July 1987, he filed a motion under 28 U. S. C. § 2255 to have his
conviction set aside. The motion was assigned to Judge Stanley
Weigel. Tham, seeking to enhance the odds that his petition would
be granted, asked Edward Solomon and Abraham Chalupowitz, a.k.a.
Abe Chapman, to assist him by capitalizing on their respective
acquaintances with another judge in the Northern District of
California, respondent Aguilar. Respondent knew Chapman as a
distant relation by marriage and knew Solomon from law school.
Solomon and Chapman met with
*Gerald B. Lefcourt filed a brief for the National
Association of Criminal Defense Lawyers as
amicus curiae
urging affirmance.
596
respondent to discuss Tham's case, as a result of which
respondent spoke with Judge Weigel about the matter.
Independent of the embezzlement conviction, the Federal Bureau
of Investigation (FBI) identified Tham as a suspect in an
investigation of labor racketeering. On April 20, 1987, the FBI
applied for authorization to install a wiretap on Tham's business
phones. Chapman appeared on the application as a potential
interceptee. Chief District Judge Robert Peckham authorized the
wiretap. The 30-day wiretap expired by law on May 20, 1987, 18 U.
s. C. § 2518(5), but Chief Judge Peckham maintained the secrecy of
the wiretap under § 2518(8)(d) after a showing of good cause.
During the course of the racketeering investigation, the FBI
learned of the meetings between Chapman and respondent. The FBI
informed Chief Judge Peckham, who, concerned with appearances of
impropriety, advised respondent in August 1987 that Chapman might
be connected with criminal elements because Chapman's name had
appeared on a wiretap authorization.
Five months after respondent learned that Chapman had been named
in a wiretap authorization, he noticed a man observing his home
during a visit by Chapman. He alerted his nephew to this fact and
conveyed the message (with an intent that his nephew relay the
information to Chapman) that Chapman's phone was being wiretapped.
Respondent apparently believed, in error, both that Chapman's
phones were tapped in connection with the initial application and
that the initial authorization was still in effect. Chief Judge
Peckham had in fact authorized another wiretap on Tham's phones
effective from October 1987 through the period in which respondent
made the disclosure, but there is no suggestion in the record that
the latter had any specific knowledge of this reauthorization.
At this point, respondent's involvement in the two separate Tham
matters converged. Two months after the disclo-
597
sure to his nephew, a grand jury began to investigate an alleged
conspiracy to influence the outcome of Tham's habeas case. Two FBI
agents questioned respondent. During the interview, respondent lied
about his participation in the Tham case and his knowledge of the
wiretap. The grand jury returned an indictment; a jury convicted
Aguilar of one count of disclosing a wiretap, 18 U. s. C. §
2232(c), and one count of endeavoring to obstruct the due
administration of justice, § 1503. A panel of the Court of Appeals
for the Ninth Circuit affirmed the § 2232(c) conviction but
reversed the § 1503 conviction.
On rehearing en bane, the Court of Appeals reversed both
convictions for the reason that the conduct in each instance was
not covered by the statutory language.
21 F.3d
1475 (1994). The court concluded that § 2232(c) requires the
disclosure of a pending wiretap application or an authorization
that had not expired because the purpose of the statute was to
thwart interference with the "'possible interception'" of the
wiretap of which the defendant had knowledge.
Id., at 1480.
Finding the interception in this case impossible once the
authorization had expired, it held respondent's disclosure was not
covered by the plain language of the statute. The Court of Appeals
also found that respondent had not interfered with a pending
judicial proceeding under § 1503. It first noted that the grand
jury had not authorized or directed the FBI investigation. It then
held that merely uttering false statements does not" 'corruptly
influence'" within the meaning of the statute.
Id., at
1485-1486. It drew this conclusion, in part, from 1988 amendments
to § 1512, which added a prohibition on corrupt persuasion of
witnesses. The court read the corrupt persuasion prohibited by §
1512 to require an active attempt to persuade a witness to tell a
false story, and used the language in § 1512 as a guide to
interpret the omnibus clause of § 1503 narrowly.
598
I
Section 1503 provides:
"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 (emphasis added).
The statute is structured as follows: first it proscribes
persons from endeavoring to influence, intimidate, or impede grand
or petit jurors or court officers in the discharge of their duties;
it then prohibits injuring grand or petit jurors in their person or
property because of any verdict or indictment rendered by them; it
then prohibits injury of any court officer, commissioner, or
similar officer on account of the performance of his official
duties; finally, the "Omnibus Clause" serves as a catchall,
prohibiting persons from endeavoring to influence, obstruct, or
impede the due administration of justice. The latter clause, it can
be seen, is far more general in scope than the earlier clauses of
the statute. Respondent
599
was charged with a violation of the Omnibus Clause, to wit: with
"corruptly endeavor[ing] to influence, obstruct, and impede the ...
grand jury investigation." App. 106.
The first case from this Court construing the predecessor
statute to § 1503 was
Pettibone v.
United States,
148 U. S. 197
(1893). There we held that "a person is not sufficiently charged
with obstructing or impeding the due administration of justice in a
court unless it appears that he knew or had notice that justice was
being administered in such court."
Id., at 206. The Court
reasoned that a person lacking knowledge of a pending proceeding
necessarily lacked the evil intent to obstruct.
Id., at 207.
Recent decisions of Courts of Appeals have likewise tended to place
metes and bounds on the very broad language of the catchall
provision. The action taken by the accused must be with an intent
to influence judicial or grand jury proceedings; it is not enough
that there be an intent to influence some ancillary proceeding,
such as an investigation independent of the court's or grand jury's
authority.
United States v.
Brown, 688 F.2d
596, 598 (CA9 1982) (citing cases). Some courts have phrased
this showing as a "nexus" requirement-that the act must have a
relationship in time, causation, or logic with the judicial
proceedings.
United States v.
Wood, 6 F.3d
692, 696 (CAlO 1993);
United States v.
Walasek,
527 F.2d
676, 679, and n. 12 (CA3 1975). In other words, the endeavor
must have the "'natural and probable effect'" of interfering with
the due administration of justice.
Wood, supra, at 695;
United States v.
Thomas, 916 F.2d
647, 651 (CAll 1990);
Walasek, supra, at 679. This is
not to say that the defendant's actions need be successful; an
"endeavor" suffices.
United States v.
Russell,
255 U. S. 138,
143 (1921). But as in
Pettibone, if the defendant lacks
knowledge that his actions are likely to affect the judicial
proceeding, he lacks the requisite intent to obstruct.
600
Although respondent urges various broader grounds for
affirmance,l we find it unnecessary to address them because we
think the "nexus" requirement developed in the decisions of the
Courts of Appeals is a correct construction of § 1503. We have
traditionally exercised restraint in assessing the reach of a
federal criminal statute, both out of deference to the prerogatives
of Congress,
Dowling v.
United States, 473 U. S. 207
(1985), and out of concern that "a fair warning should be given to
the world in language that the common world will understand, of
what the law intends to do if a certain line is passed,"
McBoyle v.
United States, 283 U. S. 25, 27 (1931).
We do not believe that uttering false statements to an
investigating agent-and that seems to be all that was proved
here-who might or might not testify before a grand jury is
sufficient to make out a violation of the catchall provision of §
1503.
The Government did not show here that the agents acted as an arm
of the grand jury, or indeed that the grand jury had even summoned
the testimony of these particular agents. The Government argues
that respondent "understood that his false statements would be
provided to the grand jury" and that he made the statements with
the intent to thwart the grand jury investigation and not just the
FBI investigation. Brief for United States 18. The Government
supports its argument with a citation to the transcript of the
recorded conversation between Aguilar and the FBI agent at the
point where Aguilar asks whether he is a target of a grand jury
investigation. The agent responded to the question by stating:
"[T]here is a Grand Jury meeting. Convening I guess that's the
correct word. Urn some evidence will be heard I'm ... I'm sure on
this issue." App. 86.
1 Respondent argues that the term "corruptly" is vague and
overbroad as applied to the type of conduct at issue in this case
and that Congress narrowed the scope of the Omnibus Clause when it
expressly punished his conduct in 18 U. S. C. § 1512.
601
Because respondent knew of the pending proceeding, the
Government therefore contends that Aguilar's statements are
analogous to those made directly to the grand jury itself, in the
form of false testimony or false documents.2
We think the transcript citation relied upon by the Government
would not enable a rational trier of fact to conclude that
respondent knew that his false statement would be provided to the
grand jury, and that the evidence goes no further than showing that
respondent testified falsely to an investigating agent. Such
conduct, we believe, falls on the other side of the statutory line
from that of one who delivers false documents or testimony to the
grand jury itself. Conduct of the latter sort all but assures that
the grand jury will consider the material in its deliberations. But
what use will be made of false testimony given to an investigating
agent who has not been subpoenaed or otherwise directed to appear
before the grand jury is far more speculative. We think it cannot
be said to have the "natural and probable effect" of interfering
with the due administration of justice.
JUSTICE SCALIA criticizes our treatment of the statutory
language for reading the word "endeavor" out of it, inasmuch as it
excludes defendants who have an evil purpose but use means that
would "only unnaturally and improbably be successful."
Post,
at 612. This criticism is unwarranted. Our reading of the statute
gives the term "endeavor" a useful function to fulfill: It makes
conduct punishable where the defendant acts with an intent to
obstruct justice, and in a manner that is likely to obstruct
justice, but is foiled in some
2 See,
e. g.,
United States v.
Mullins,
22 F.3d
1365, 1367-1368
(CA6 1994) (altered records and
instructed co-worker to alter records subject to subpoena
duces
tecum); United States v.
Williams, 874
F.2d 968, 976-982
(CA5 1989) (uttered false testimony to
grand jury);
United States v.
McComb,
744 F.2d
555, 559 (CA7 1984) (created false meeting minutes and
voluntarily delivered them to grand jury);
United States v.
Faudman, 640 F. 2d 20, 23
(CA6 1981) (falsified
records, some of which had been sought by subpoena
duces tecum);
United States v.
Walasek, 527 F.2d
676, 679
680 (CA3 1975) (falsified documents requested by
subpoena
duces tecum).
602
way. Were a defendant with the requisite intent to lie to a
subpoenaed witness who is ultimately not called to testify, or who
testifies but does not transmit the defendant's version of the
story, the defendant has endeavored to obstruct, but has not
actually obstructed, justice. Under our approach, a jury could find
such defendant guilty.
JUSTICE SCALIA also apparently believes that any act, done with
the intent to "obstruct ... the due administration of justice," is
sufficient to impose criminal liability. Under the dissent's
theory, a man could be found guilty under § 1503 if he knew of a
pending investigation and lied to his wife about his whereabouts at
the time of the crime, thinking that an FBI agent might decide to
interview her and that she might in turn be influenced in her
statement to the agent by her husband's false account of his
whereabouts. The intent to obstruct justice is indeed present, but
the man's culpability is a good deal less clear from the statute
than we usually require in order to impose criminal liability.
II
Section 2232(c) prohibits the disclosure of information that
a wiretap has been sought or authorized. The statute reads:
"Whoever, having knowledge that a Federal investigative or law
enforcement officer has been authorized or has applied for
authorization under chapter 119 to intercept a wire, oral, or
electronic communication, in order to obstruct, impede, or prevent
such interception, gives notice or attempts to give notice of the
possible interception to any person shall be fined under this title
or imprisoned not more than five years, or both." 18 U. S. C. §
2232(c).
This section is much more precisely targeted than is the
catchall provision of § 1503 discussed above. The first clause
defines the element of knowledge required for the act to be
criminal: knowledge that an officer has been authorized or
603
has sought authorization to intercept a communication. The
second clause defines the required intent with which the act be
done: "in order to obstruct, impede, or prevent such interception."
The third clause defines the punishable act: "gives notice or
attempts to give notice of the possible interception." Respondent
persuaded the Court of Appeals to hold that the wiretap application
or authorization must be pending or
in esse at the time of
the disclosure, but we do not believe any such requirement is to be
found in the statutory language.
Respondent here urges the reasoning accepted by the Court of
Appeals. "[T]he purpose of the statute is to prevent interference
with 'possible interception.'" 21 F. 3d, at 1480. Once a wiretap
has expired or been denied, the Ninth Circuit reasoned, there is no
"'possible interception'" to disclose or attempt to disclose.
Ibid. The narrow purpose of the statute is further evidenced
by the statute's intent requirement, which limits punishable
disclosures to those undertaken with the intent to interfere with"
'such interception'" of which the defendant "has knowledge."
Ibid. Under the circumstances, the disclosure of an expired
wiretap not only fails to violate the terms of the statute, it
fails to implicate any interest protected by § 2232(c). Brief for
Respondent 38.
But this argument, we think, fails in the face of the statutory
language itself. The term "such interception" is part of the intent
requirement in the second clause; the defendant must intend to
obstruct the interception made pursuant to the application or
authorization of which he has the knowledge required by the first
clause. The phrase "possible interception" is found in the third
clause, which describes the act which offends the statute. A
defendant intending to disclose the existence of a pending
application would ordinarily have no way of knowing whether the
application or authorization had resulted in an interception, and
that is doubtless why the third clause uses the term "possible"
interception.
604
It was not intended to limit the offense to cases where the
interception based upon the application or authorization was
factually possible, but to recognize the fact that at the time the
prohibited notice was given it very likely could not be known
whether or not there would be an interception.
The Court of Appeals thought its result justified by its view
that the aim of the statute was to prevent interference with
"possible" interceptions, and that if an interception was not
possible because the wiretap was no longer in place at the time of
the disclosure, that interest was not threatened. But the statute
is aimed at something more than the interference with
interceptions; it is aimed at disclosure of wiretap orders or
applications which may lead to interceptions. The offense is
complete at the time the notice is given, when it often cannot be
known whether any interception will take place.
JUSTICE STEVENS argues that § 2232(c) criminalizes disclosures
of pending applications without a need to rely on the word"
'possible.'"
Post, at 608. That is not so. The reference to
pending applications occurs only in the clause specifying the
knowledge element. The
actus reus element must be
independently satisfied. Without the word "possible," the statute
would only prohibit giving notice of "the interception": It would
not reach the giving of notice of an application which has not yet
resulted in an authorization or an authorization which has not yet
resulted in an interception. That Congress could have accomplished
the same result by phrasing the statute differently-for instance,
by repeating "'such interception'" in the third clause,
ibid.-does not undercut the fact that the word "possible" is
necessary in the statute
as written to criminalize such
behavior.3
3JUSTICE STEVENS also argues that our reading of the statute
would achieve no temporal limitation on liability and could result
in the "absurd" prosecution of a discloser 10 years after the
wiretap expired.
Post, at 608-609. Although we reserve the
question for a case that presents it, we note that the wiretapping
scheme as a whole suggests that a plausible
605
Acceptance of respondent's position would open the door to
additional claims of "impossibility" other than the fact that the
application or order was not pending at the time of the disclosure.
Some sort of mechanical failure, or the departure of the person
whose conversation was to be intercepted from the place at which
the reception was authorized, are two which come to mind. In
Osborn v.
United States, 385 U. S. 323, 333 (1966),
we expressed reservations about the "continuing validity [of] the
doctrine of 'impossibility,' with all its subtleties," in the law
of criminal attempt, and we would require much more than the
statutory language before us to believe that Congress intended to
engraft it onto the language of § 2232(c).
Finally, respondent urges us to read the statute to exclude
disclosures of expired wiretaps because of concern that a broader
construction would run counter to the First Amendment. We see no
necessity for such a restrictive construction of the statute. It is
true that the Government may not generally restrict individuals
from disclosing information that lawfully comes into their hands in
the absence of a "state interest of the highest order."
Smith v.
Daily Mail Publishing Co., 443 U. S. 97, 103 (1979).
But the statute here in question does not impose such a restriction
generally, but only upon those who disclose wiretap information "in
order to obstruct, impede, or prevent" the interception. Nor was
the respondent simply a member of the general
temporal limit on liability for disclosure would be the point at
which the authorizing judge notifies the interceptee and related
parties of the existence of an application or authorization
pursuant to 18 U. S. C. § 2518(8)(d). Such notification must occur
"within a reasonable time" after denial of the application or
termination of a wiretap, and may be postponed only upon a showing
of "good cause." § 2518(8)(d). The parties did not brief this
issue, and we need not decide it on these facts because respondent
disclosed his knowledge of the wiretap application before Chief
Judge Peckham notified the parties in May 1989. That notification
issued two years after the FBI first applied for authorization and
one year after the last authorized wiretap expired.
606
Opinion of STEVENS, J.
public who happened to lawfully acquire possession of
information about the wiretap; he was a Federal District Court
Judge who learned of a confidential wiretap application from the
judge who had authorized the interception, and who wished to
preserve the integrity of the court. Government officials in
sensitive confidential positions may have special duties of
nondisclosure. See Fed. Rule Crim. Proc. 6(e) (prohibiting the
disclosure of grand jury information). Likewise, protective orders
may be imposed in connection with information acquired through
civil discovery without violating the First Amendment.
Seattle
Times Co. v.
Rhinehart, 467 U. S. 20, 31 (1984).
As to one who voluntarily assumed a duty of confidentiality,
governmental restrictions on disclosure are not subject to the same
stringent standards that would apply to efforts to impose
restrictions on unwilling members of the public. See
Snepp
v.
United States, 444 U. S. 507 (1980)
(per curiam). In this case, Chief Judge Peckham postponed
the notification of parties named in the application in order to
maintain the secrecy of the wiretap. See 18 U. S. C. § 2518(1)(d).
We think the Government's interest is quite sufficient to justify
the construction of the statute as written, without any artificial
narrowing because of First Amendment concerns.
Respondent raised below a challenge to the jury instructions,
but the Court of Appeals found it unnecessary to decide. We affirm
the decision of the Court of Appeals with respect to respondent's
conviction under § 1503 and reverse with respect to respondent's
conviction under § 2232(c). We remand for proceedings consistent
with this decision.
So ordered.
JUSTICE STEVENS, concurring in part and dissenting in part.
Although I agree with the Court's disposition of the 18 U. S. C.
§ 1503 issue, and also with its rejection of the First
607
Amendment challenge to respondent's conviction for disclosing a
wiretap application under § 2232(c), I believe the Court of Appeals
correctly construed § 2232(c) to invalidate respondent's conviction
under that statute.
When respondent was convicted of disclosing a 30-day wiretap
authorization that had expired months before the disclosure, he was
convicted of an attempt to do the impossible: interfere with a
nonexistent wiretap. Traditionally, the law does not proscribe an
attempt unless the defendant's intent is accompanied by "a
dangerous probability that [the unlawful result] will happen."
Swift &
Co. v.
United States, 196 U. S. 375, 396 (1905)
(Holmes, J.). Whether such a dangerous probability exists, of
course, depends ultimately on what result we interpret the statute
as having declared unlawful. See 2 W. LaFave & A. Scott,
Substantive Criminal Law § 6.3, pp. 44-45 (1986). In this case,
there was no dangerous probability that respondent actually would
reveal the existence of a wiretap or wiretap application because
none existed to reveal. We should abjure a construction of a
criminal statute that leads to criminalizing nothing more than an
evil intent accompanied by a harmless act, particularly when, as
here, the statutory language does not clearly extend liability so
far. Cf.
Simpson v.
United States, 435 U. S. 6, 14-15
(1978).
Indeed, the text of § 2232(c) favors a reading that requires, as
an essential element of the offense, the possibility of
interference with an authorized interception. Both the second and
third clauses of the statute support this straightforward
interpretation. The second clause requires that the defendant
intend to impede "such interception." That phrase refers to an
interception that the defendant knows a federal officer "has been
authorized or has applied for authorization" to make. After the
authorization expires, no "such interception" can occur. Moreover,
to infer that "such interception" includes any interception that
might be made pursuant to any subsequent reauthorization severely
undermines the
608
Opinion of STEVENS, J.
statute's knowledge requirement by making actual knowledge of an
initial, limited authorization the linchpin of liability for
disclosing later, entirely conjectural or nonexistent
authorizations. That inference contradicts our usual practice of
giving strict effect to scienter provisions. See,
e. g.,
United States v.
X-Citement Video, Inc., 513 U. S. 64, 68-71
(1994).
The third clause of § 2232(c) describes the notice that a
defendant must attempt to give a third person in order to violate
the statute as notice of
"the possible interception." The
definite article necessarily refers to an interception that is
"authorized" (or for which federal officers have applied for
authorization) per the second clause, thereby imposing
authorization as a requirement to satisfy the next word,
"possible." I agree with the Court that interceptions prevented by
mechanical failures or the departure of the suspect are "possible"
within the meaning of the statute, see
ante, at 603-604, as
long as those interceptions, however unlikely, are legally
"authorized." The wholly theoretical interception that respondent
was convicted of attempting to impede was not authorized, nor had
federal officers even sought authorization for it; therefore, it
was not "possible" within the meaning of the statute.
The Court's attempt to explain the word "possible" as an
assurance that the statute will cover interceptions that may or may
not result from a pending application, see
ante, at 604, is
unpersuasive. Because the statute plainly criminalizes disclosures
of pending applications, "possible" does not need to do the work
the Court assigns it. The phrase "such interception," already used
in the second clause, would do just as well. The function of
"possible" must be to place some temporal limitation on potential
liability under the statute. Under the Court's reasoning,
respondent could be found guilty if he had disclosed a 10-year-old
application or authorization. The word "possible," properly
understood, would prevent such an absurd result by limiting
liability to
609
interceptions that could actually be made pursuant to present or
pending authorization.
As the Court notes in response to this opinion, see ibid., under
its reading the third clause serves to define the
actus reus
element of the crime, just as Congress could have done by replacing
the phrase "notice of the possible interception" with the
unambiguous phrase "notice of such authorization or application."
That unambiguous language, however, would not achieve the temporal
limitation on liability that I believe Congress intended to achieve
with the words "possible interception." The Court appears to
acknowledge the need for such a limitation. See
ante, at
604-605, n. 3. Rather than recognizing the limitation the statute
contains, however, the Court hints that it might in some future
case invent one. Limiting liability to the time before the
authorizing judge announces the wiretap may well be "plausible,"
ibid., but no plausible basis exists for finding that limitation in
the words of the statute. A wiser course than judicial legislation,
I submit, is simply to adopt a literal, reasonable construction of
the text that Congress drafted.
I would affirm the decision of the Court of Appeals in its
entirety.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring in part and dissenting in part.
I join all but Part I and the last paragraph of Part II of the
Court's opinion. I would reverse the Court of Appeals, and would
uphold respondent's conviction, on the count charging violation of
18 U. S. C. § 1503.
I
The "omnibus clause" of § 1503, under which respondent was
charged, provides:
"Whoever ... corruptly or by threats or force, or by any
threatening letter or communication, influences, ob-
610
Opinion of SCALIA, J.
structs, 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."
This makes criminal not just success in corruptly influencing
the due administration of justice, but also the "endeavor" to do
so. We have given this latter proscription, which respondent was
specifically charged with violating, see App. 106-107, a generous
reading: "The word of the section is 'endeavor,' and by using it
the section got rid of the technicalities which might be urged as
besetting the word 'attempt,' and it describes
any effort or
essay to accomplish the evil purpose that the section was
enacted to prevent."
United States v.
Russell,
255 U. S. 138,
143 (1921) (emphasis added) (interpreting substantially identical
predecessor statute). Under this reading of the statute, it is even
immaterial whether the endeavor to obstruct pending proceedings is
possible of accomplishment. In
Osborn v.
United States,
385 U. S. 323, 333 (1966), we dismissed out of hand the
"impossibility" defense of a defendant who had sought to convey a
bribe to a prospective juror through an intermediary who was
secretly working for the Government. "Whatever continuing
validity," we said, "the doctrine of 'impossibility' ... may
continue to have in the law of criminal attempt, that body of law
is inapplicable here."
Ibid. (footnote omitted).l
Even read at its broadest, however, § 1503's prohibition of
"endeavors" to impede justice is not without limits. To "endeavor"
means to strive or work for a certain end. Webster's New
International Dictionary 844 (2d ed. 1950); 1 New
1 This complete disavowal of the impossibility defense may be
excessive.
As
Pettibone v.
United States, 148 U. S. 197 (1893),
acknowledged, an endeavor to obstruct proceedings that did not
exist would not violate the statute. "[O]bstruction can only arise
when justice is being administered."
Id., at 207. See,
e. g.,
United States v.
Williams, 874 F.2d
968, 977 (CA5 1989) ("There are three core elements that the
government must establish ... : (1) there must be a pending
judicial proceeding").
611
Shorter Oxford English Dictionary 816 (1993). Thus, § 1503
reaches only
purposeful efforts to obstruct the due
administration of justice, i.
e., acts performed with that
very object in mind. See,
e. g., United States v.
Mullins, 22 F.3d
1365, 1370 (CA6 1994);
United States v.
Ryan,
455 F.2d
728, 734 (CA9 1972). This limitation was clearly set forth in
our first decision construing § 1503's predecessor statute,
Pettibone v.
United States, 148 U. S. 197 (1893),
which held an indictment insufficient because it had failed to
allege the intent to obstruct justice. That opinion rejected the
Government's contention that the intent required to violate the
statute could be found in "the intent to commit an unlawful act, in
the doing of which justice was in fact obstructed"; to justify a
conviction, it said, "the specific intent to violate the statute
must exist."
Id., at 207.
Pettibone did acknowledge,
however-and here is the point that is distorted to produce today's
opinion-that the specific intent to obstruct justice could be found
where the defendant intentionally committed a wrongful act that had
obstruction of justice as its "natural and probable consequence."
Ibid.
Today's "nexus" requirement sounds like this, but is in reality
quite different. Instead of reaffirming that "natural and probable
consequence" is one way of establishing intent, it
substitutes
'" "natural and probable effect"'"
for intent, requiring
that factor even when intent to obstruct justice is otherwise
clear. See
ante, at 599, quoting
United States v.
Wood, 6 F.3d
692, 695 (CAlO 1993), which in turn quotes
United States
v.
Thomas, 916 F.2d
647, 651 (CAll 1990).2
2 Thomas, which appears to be the origin of this
doctrine, made precisely the same mistake the Court does. It cited
and misapplied earlier Court of Appeals cases standing for the
entirely different principle-flowing from our language in
Pettibone-that to prove an "endeavor" to obstruct justice,
"all the government has to establish is that the defendant should
have reasonably foreseen that the natural and probable consequence
of the success of his scheme would [obstruct the due administration
of justice]."
United States v.
Silverman, 745 F.2d
1386, 1393 (CAll 1984). See also
United States v.
Fields, 838 F.2d
1571, 1573 (CAll 1988). This
612
Opinion of SCALIA, J.
But while it is quite proper to derive an
intent
requirement from § 1503's use of the word "endeavor," it is quite
impossible to derive a
"natural and probable consequence"
requirement. One would be "endeavoring" to obstruct justice if he
intentionally set out to do it by means that would only unnaturally
and improbably be successful. As we said in
Russell, "any
effort or essay" corruptly to influence, obstruct, or impede the
due administration of justice constitutes a forbidden endeavor, 255
U. S., at 143, even, as we held in
Osborn, an effort that is
incapable of having that effect, see 385 U. S., at 333.
The Court does not indicate where its "nexus" requirement is to
be found in the words of the statute. Instead, it justifies its
holding with the assertion that "[w]e have traditionally exercised
restraint in assessing the reach of a federal criminal statute,
both out of deference to the prerogatives of Congress and out of
concern that a fair warning should be given ... of what the law
intends to do if a certain line is passed."
Ante, at 600
(citation and internal quotation marks omitted). But "exercising
restraint
in assessing the reach of a federal criminal
statute" (which is what the rule of lenity requires, see
United
States v.
Bass, 404 U. S. 336, 347-348
(1971)) is quite different from importing extratextual requirements
in order to limit the reach of a federal criminal statute,
which is what the Court has done here. By limiting § 1503 to acts
having the "natural and probable effect" of interfering with the
due administration of justice, the Court effectively reads the word
"endeavor," which we said in
Russell embraced "any effort or
essay" to obstruct justice, 255 U. S., at 143, out of the omnibus
clause, leaving a prohibition of only actual obstruction and
competent attempts.
does not impose a requirement of "natural and probable
consequence," but approves a manner of proof of "intent." See,
e. g.,
United States v.
Neiswender, 590 F.2d
1269, 1273
(CA4), cert. denied, 441 U. S. 963
(1979).
613
II
The Court apparently adds to its "natural and probable effect"
requirement the requirement that the defendant
know of that
natural and probable effect. See
ante, at 599 ("[I]f the
defendant lacks knowledge that his actions are likely to affect the
judicial proceeding, he lacks the requisite intent to obstruct").
Separate proof of such knowledge is not, I think, required for the
orthodox use of the "natural and probable effect" rule discussed in
Pettibone: Where the defendant intentionally commits a
wrongful act that
in fact has the "natural and probable
consequence" of obstructing justice, "the unintended wrong may
derive its character from the wrong that was intended." 148 U. S.,
at 207. Or, as we would put the point in modern times, the jury is
entitled to presume that a person intends the natural and probable
consequences of his acts.
While inquiry into the state of the defendant's knowledge seems
quite superfluous to the Court's opinion (since the act performed
did not have the requisite "natural and probable effect" anyway),
it is necessary to my disposition of the case. As I have said, I
think an act committed
with intent to obstruct is all that
matters; and what one can fairly be thought to have intended
depends in part upon what one can fairly be thought to have known.
The critical point of knowledge at issue, in my view, is not
whether "respondent knew that his false statement
would be
provided to the grand jury,"
ante, at 601 (emphasis
added) (a heightened burden imposed by the Court's
knowledge-of-natural-and-probable-effect requirement), but rather
whether respondent knew-or indeed, even erroneously
believed-that his false statement
might be provided
to the grand jury (which is all the knowledge needed to support the
conclusion that the purpose of his lie was to mislead the jury).
Applying the familiar standard of
Jackson v.
Virginia, 443
U. S. 307 (1979), to the proper question, I find that a
rational juror could readily
614
Opinion of SCALIA, J.
have concluded beyond a reasonable doubt that respondent had
corruptly endeavored to impede the due administration of justice,
i.
e., that he lied to the FBI agents intending to interfere
with a grand jury investigation into his misdeeds.
Recorded conversations established that respondent knew a grand
jury had been convened, App. 47; that he had been told he was a
target of its investigation, id., at 68; and that he feared he
would be unable to explain his actions if he were subpoenaed to
testify, id., at 51. Respondent himself testified that, at least at
the conclusion of the interview, it was his "impression" that his
statements to the FBI agents would be reported to the grand jury. 9
Tr. 1360 (Aug. 14, 1990). The evidence further established that
respondent made false statements to the FBI agents that minimized
his involvement in the matters the grand jury was investigating.
See App. 73, 76, 81, 83-84, 86. Viewing this evidence in the light
most favorable to the Government, I am simply unable to conclude
that no rational trier of fact could have found beyond a reasonable
doubt that respondent lied specifically because he thought the
agents
might convey what he said to the grand jury-which
suffices to constitute a corrupt endeavor to impede the due
administration of justice. In fact, I think it would be hard for a
juror to conclude otherwise.
III
Since I find against respondent on the § 1503 count, I must
consider several other grounds offered by respondent for affirming
the Court of Appeals' setting aside of his conviction. First,
invoking the interpretive canon of
ejusdem generis, he
argues that, since all the rest of § 1503 refers only to actions
directed at jurors and court officers,3 the omnibus clause can-
3 Those clauses provide:
''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
615
not apply to actions directed at witnesses. But the rule of
ejusdem generis, which "limits general terms which follow
specific ones to matters similar to those specified,"
Gooch
v.
United States, 297 U. S. 124, 128
(1936); accord,
Harrison v.
PPG Industries, Inc.,
446 U. S. 578,
588 (1980), has no application here. Although something of a
catchall, the omnibus clause is
not a general or collective
term following a list of specific items to which a particular
statutory command is applicable (e. g., "fishing rods, nets, hooks,
bobbers, sinkers, and other equipment"). Rather, it is one of the
several distinct and independent prohibitions contained in § 1503
that share only the word "Whoever," which begins the statute, and
the penalty provision which ends it. Indeed, given the already
broad terms of the other clauses in § 1503, to limit the omnibus
clause in the manner respondent urges would render it superfluous.
See
United States v.
Howard, 569
Respondent next contends that because Congress in 1982 enacted a
different statute, 18 U. S. C. § 1512, dealing with witness
tampering, and simultaneously removed from § 1503 the provisions it
had previously contained specifically addressing efforts to
influence or injure witnesses, see Victim and Witness Protection
Act of 1982, Pub. L. 97-291, 96 Stat. 1249-1250, 1253, his
witness-related conduct is no longer punishable under the omnibus
clause of § 1503. The 1982 amendment, however, did nothing to alter
the omnibus clause, which by its terms encompasses corrupt
"endeavors to influence, obstruct, or impede, the due
administration of
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 ... shall be fined not more than
$5,000 or imprisoned not more than five years, or both." 18 U. S.
C. § 1503.
616
Opinion of SCALIA, J.
justice." The fact that there is now some overlap between § 1503
and § 1512 is no more intolerable than the fact that there is some
overlap between the omnibus clause of § 1503 and the other
provisions of § 1503 itself. It hardly leads to the conclusion that
§ 1503 was, to the extent of the overlap, silently repealed. It is
not unusual for a particular act to violate more than one criminal
statute, see,
e. g., Gavieres v.
United States,
220 U. S. 338,
342 (1911), and in such situations the Government may proceed under
any statute that applies, see,
e. g., United States v.
Batchelder, 442 U. S. 114, 123-124
(1979); United States v.
Beacon Brass Co., 344 U. S. 43, 45-46
(1952). It is, moreover, "a cardinal principle of statutory
construction that repeals by implication are not favored."
United States v.
United Continental Tuna Corp.,
425 U. S. 164,
168 (1976); see also
Posadas v.
National City Bank,
296 U. S. 497, 503 (1936).
Finally, respondent posits that the phrase "'corruptly ...
endeavors to influence, obstruct, or impede' may be
unconstitutionally vague," in that it fails to provide sufficient
notice that lying to potential grand jury witnesses in an effort to
thwart a grand jury investigation is proscribed. Brief for
Respondent 22, n. 13. Statutory language need not be colloquial,
however, and the term "corruptly" in criminal laws has a
longstanding and well-accepted meaning. It denotes "[a]n act done
with an intent to give some advantage inconsistent with official
duty and the rights of others .... It includes bribery but is more
comprehensive; because an act may be corruptly done though the
advantage to be derived from it be not offered by another."
United States v.
Ogle, 613 F.2d
233, 238 (CAlO) (internal quotation marks omitted), cert.
denied, 449 U. S. 825 (1980). See also Ballentine's Law Dictionary
276 (3d ed. 1969); Black's Law Dictionary 345 (6th ed. 1990). As
the District Court here instructed the jury:
"An act is done corruptly if it's done voluntarily and
intentionally to bring about either an unlawful result or a lawful
result by some unlawful method, with a hope or
617
expectation of either financial gain or other benefit to oneself
or a benefit of another person." App. 117.
Moreover, in the context of obstructing jury proceedings, any
claim of ignorance of wrongdoing is incredible. Acts specifically
intended to "influence, obstruct, or impede, the due administration
of justice" are obviously wrongful, just as they are necessarily
"corrupt." See
Ogle, supra, at 239;
United States v.
North, 910 F.2d
843, 941 (CAD C) (Silberman, J., concurring in part and
dissenting in part), modified,
920 F.2d
940 (1990);
United States v.
Reeves, 752 F.2d
995, 999 (CA5), cert. denied, 474 U. S. 834 (1985).
***
The "nexus" requirement that the Court today engrafts into §
1503 has no basis in the words Congress enacted. I would reverse
that part of the Court of Appeals' judgment which set aside
respondent's conviction under that statute.
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