United States v. Veal

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 95-4427
FILED
_______________ U.S. COURT OF APPEALS
D. C. Docket No. 93-352-CR-SM ELEVENTH CIRCUIT
09/04/98
THOMAS K. KAHN
UNITED STATES OF AMERICA, CLERK
Plaintiff-Appellee,
versus
NATHANIEL VEAL, JR., ANDY WATSON,
PABLO CAMACHO, CHARLIE HAYNES, JR.,
Defendants-Appellants.
______________________________
Appeals from the United States District Court
for the Southern District of Florida
______________________________
(September 4, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and WOODS*, Senior
District Judge.
___________
*Honorable Henry Woods, Senior U.S. District Judge for the
Eastern District of Arkansas, sitting by designation.
BIRCH, Circuit Judge:
These consolidated appeals from convictions of police officers
under 18 U.S.C. § 1512(b)(3) for providing false and misleading
information concerning the death of a drug dealer to state investigators
present the issue of whether statements suppressed in a prior civil
rights trial pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct.
616 (1967),1 can be admitted in a subsequent obstruction of justice
trial. The police officers also challenge the district judge's denial of
their motions to dismiss, statutory interpretation, and jury instructions
as well as the sufficiency of the evidence supporting their convictions.
We affirm.
1
Under Garrity, a public employee is protected so that he does not forfeit his Fifth
Amendment right to silence or lose his public employment when requested to give a statement in
the course of an internal investigation; such statements may not be used against the employee in
a criminal prosecution concerning the matter under investigation. See Lefkowitz v. Turley, 414
U.S. 70, 79-80, 94 S.Ct. 316, 323 (1973); Garrity, 385 U.S. 493, 87 S.Ct. 616 (1967); Harrison v.
Wille, 132 F.3d 679, 681 n.2 (11th Cir. 1998) (per curiam).
2
I. FACTUAL AND PROCEDURAL BACKGROUND
On Friday, December 16, 1988, defendants-appellants Nathaniel
Veal, Jr., Andy Watson, Pablo Camacho, and Charlie Haynes, Jr. as
well as Ronald Sinclair and Thomas Trujillo were members of the
Street Narcotics Unit ("SNU") of the Miami Police Department.
According to trial testimony, before the 4:00 P.M. roll call on that day,
the Chief of Police received a letter in which an anonymous informant
reported that unidentified drug dealers had met at 7th Avenue and
32nd Street, NW, in Miami and had contracted to kill Camacho. The
SNU members were aware that this address was the residence of
Leonardo Mercado, a drug dealer. Camacho, Veal, Watson, and
Haynes were told of the death threat.
En route to a sting operation at the proximate location of 7th
Avenue and 57th Street, NW, Camacho and Watson, Veal and
Haynes, and Sinclair and Trujillo, proceeding in three undercover
vehicles, stopped at Mercado's house and exited their vehicles.
Camacho approached Mercado, who was outside, put his hand on
Mercado's shoulder, and escorted him into his house. In the next few
3
minutes, the other officers entered the house, closed the door, and
lowered the curtains. Shortly thereafter, police cars and a fire/rescue
unit with emergency medical treatment arrived in response to calls for
assistance from Sinclair and Camacho.
When Officer Mary Reed of the Miami Police Department arrived
and entered the house, she saw Camacho, Veal, Haynes, and Sinclair
and a bloody Mercado lying on the floor moaning. Haynes pointed to
Mercado and informed Reed that he was "the mother fucker that put a
contract out on Camacho." Supp.R8-22. The officers urged Reed to
"get [her] kick in," id. at 23, but she declined because “[h]e was in bad
shape,” id. at 24. Despite emergency medical efforts, Mercado, who
had suffered extensive head trauma and a severely bruised chest, died
at the scene. A subsequent autopsy revealed multiple bruises and
bloody wounds to his head, scalp, neck and face as well as fractured
ribs.
Knowing that Mercado was dead, Camacho, Veal, Watson,
Haynes, and other SNU officers left the scene and returned to the
police department. Various eyewitnesses testified that they saw
4
Camacho, Veal, Watson, Haynes, Sinclair, and Trujillo when they
returned to the police station, entered the lieutenant's office, and
closed the door. Although none of these individuals had noticed
anything unusual about Camacho's appearance when he entered the
lieutenant's office, the witnesses saw a rip in the front, chest area of his
shirt and on the sleeve when he left that office. While inside the SNU
lieutenant's office, one of the officers took pictures of Camacho that
purportedly reflected his condition after the altercation with Mercado.
These photographs, showing a long rip in the front of Camacho's shirt,
which also was missing a pocket, were placed in the lieutenant's
cabinet together with a butcher knife, supposedly retrieved from the
altercation scene, and a bag of crack cocaine allegedly seized from
Mercado.
At 7:55 P.M. that evening, Camacho went to the office of crime-
scene technician Sylvia Romans, who photographed arrestees and/or
officers involved in “control” situations, when an officer used more than
normal force in making an arrest. Camacho asked Romans to
photograph him to show his clothing and injuries. Romans complied
5
and her photographs reveal a large tear in the front of Camacho's shirt,
the pocket missing, and a long rip in the back of his right shirt sleeve.
Romans noticed that Camacho had no cuts and was not bleeding
anywhere but that his right eye was bruised.
A freelance photographer took random photographs at the
Mercado residence after the altercation. One photograph showed
Camacho at the doorway of Mercado's residence; his shirt was
undamaged with no tear in the front and the pocket was intact. The
same freelance photographer came to the SNU office and took
additional photographs of Camacho that showed a large rip in the front
of his shirt that had been taped together and the pocket was missing.
When Camacho went to Romans's office a short time later to have her
photograph him, the tape had been removed, the rips to his shirt were
exposed, and there was no pocket on his shirt. Two visiting Detroit
police officers accompanied the SNU lieutenant to Mercado's house.
One testified that she saw an officer leaving the house with a rusty
butcher knife. She saw a similar knife on the table in the lieutenant's
office when the officers left that office.
6
At trial, an expert in fiber analysis was asked whether the tears to
Camacho’s shirt resulted from knife cuts or a tear. The expert testified
that a mechanical object had been used to make a half-inch cut to the
front of the shirt and that the shirt then had been ripped with a fifteen-
inch tear. The damage to the right sleeve also was consistent with the
shirt having been cut with a mechanical object and then torn.
Similarly, the damage to the pocket area was consistent with the
pocket having been cut and then torn from the shirt.
Camacho later was treated at a hospital for elevated blood
pressure and swelling; none of the other officers had any injuries. In
the hours following Mercado's death, Miami homicide investigators
were advised that Camacho had been involved in the altercation with
Mercado but that Veal, Watson, Haynes, and Sinclair had not. In the
early morning hours of December 17, 1988, Veal, Watson, Haynes,
and Sinclair gave statements to state homicide investigators regarding
their knowledge of the circumstances surrounding Mercado’s death.
Each asserted that the officers had stopped at Mercado's house
because Camacho had seen some drug activity there that justified
7
investigation and not because of the death threat to Camacho. Each
denied having physical contact with Mercado or having heard or seen
anything that would explain or assist the investigators in determining
how Mercado's injuries had occurred. They stated that, by the time
that they were inside the house, the altercation was over and Mercado
was on the floor. Veal, Watson and Haynes also denied meeting with
Camacho at the SNU office.
At trial, an expert in forensic serology and blood-stain-pattern
interpretation compared the blood stains on Mercado to the blood
stains on the clothing and shoes worn by Camacho, Veal, Watson, and
Haynes on December 16, 1988. Thus, he reconstructed who had
come into contact with Mercado and the amount of force used during
this contact. The expert found that Veal's pants and shoes were
covered with blood stains of Mercado's type. The blood spatter on
Veal's pants and shoes was consistent with Veal's having struck
Mercado multiple times using medium to medium-high force. The back
of Veal's right shoe had a pattern consistent with having been stamped
8
into Mercado's head multiple times. Additionally, shoe patterns on the
seat and ankle areas of Mercado’s pants matched Veal’s right shoe.
Similarly, Watson's pants were blood-stained inside the cuffs and
all the way up to the lap and pocket areas. The blood spatter on
Watson's pants and sneakers was consistent with his having been
within two to three feet of a direct impact to Mercado of medium to
medium-high force. The location of the blood on Watson’s pants and
the spatter of Mercado’s blood on two walls in the corner of the room
above the bed was consistent with Watson’s having been in the
immediate vicinity of a direct impact to Mercado’s head while Mercado
was in an upright position in the corner of the room near the bed and
not after Mercado was on the floor. A criminology expert in latent
prints also testified that Watson’s right shoe was consistent with
several of Mercado’s wounds and that his shoes were consistent with
injuries in two different areas of one wound, which showed two points
of contact. Another smaller wound matched the forward part of
Watson’s right shoe, and a third wound also matched Watson’s shoe.
9
Haynes’s left shoe had blood on it and his shirt had one blood
spot. His pants, however, had no blood stains because he had
laundered his pants and shoe laces before being asked to surrender
them. A criminology expert testified that the wounds on Mercado’s
forehead and left cheek near his eye matched Haynes’s left shoe and
were consistent with a single contact.
On Monday, December 19, 1988, Federal Bureau of Investigation
(“FBI”) Agent David Hedgecock, assigned to the civil rights unit in
Miami, learned of the incident resulting in Mercado’s death and
opened an investigation in conjunction with Miami Police Department
homicide detectives. This investigation led to federal, civil rights
charges against Camacho, Veal, Watson, Haynes, Sinclair, and
Trujillo. In conducting the FBI investigation, Hedgecock received,
reviewed, and used all of the evidence collected by the state, including
the officers’ statements, Romans’s photographs of Camacho, and all
other physical evidence. The officers were charged with infringing
Mercado’s civil rights in violation of 18 U.S.C. §§ 241 and 242.
10
In the federal civil rights case that was tried in 1990, the officers
moved pursuant to Garrity to suppress their statements concerning the
circumstances of Mercado’s death. The district judge granted the
officers’ suppression motions because he determined that the
statements made by Veal, Watson and Haynes resulting from
questioning at the police station and with the advice of counsel were
within the scope of Garrity.2 See United States v. Camacho, 739 F.
Supp. 1504 (S.D. Fla. 1990). The civil rights trial resulted in acquittals
on the conspiracy count, and the jury was unable to reach a verdict on
the substantive counts. Sinclair died after the civil rights trial.
In July, 1993, a federal grand jury in the Southern District of
Florida indicted Camacho, Veal, Watson, and Haynes.3 They were
charged in Count I with conspiring under 18 U.S.C. § 371 to obstruct
the due administration of justice in violation of 18 U.S.C. § 1503 and
engaging in misleading conduct designed to hinder, delay, and prevent
2
Camacho and Trujillo were not interviewed and gave no formal statements because they
were identified as having been directly involved in Mercado’s death.
3
Jesus Aguer and Armando Aguilar, codefendants in the civil rights trial, were acquitted
of all charges. Trujillo was not indicted in the obstruction of justice case.
11
the communication of information relating to the possible commission
of a federal offense to a federal law enforcement officer or judge in
violation of 18 U.S.C. § 1512 and, in Count II, with knowingly
misleading state investigators regarding the true circumstances of the
death of Mercado with the intent to prevent the communication of
information relating to the possible commission of a federal offense in
violation of 18 U.S.C. §§ 1512(b)(3) and 2. The remaining counts
charged them with perjury in violation of 18 U.S.C. § 1623 and false
statements in violation of 18 U.S.C. § 1001.
All of the officers moved to dismiss Count II because it failed to
allege facts sufficient to constitute a violation of 18 U.S.C. § 1512(b)(3).
The district judge denied those motions. Veal, Watson and Haynes
moved to suppress their statements that had been suppressed under
Garrity in the civil rights trial. The district judge also denied those
motions.
Following a ten-week trial, Camacho, Veal, Watson, and Haynes
were convicted on Count II and acquitted on all other counts. The
district judge denied their motions for judgments notwithstanding the
12
verdict and/or for a new trial. Camacho was sentenced to thirty months
of imprisonment and two years of supervised release. Veal, Watson
and Haynes each were sentenced to twenty-one months of
imprisonment and two years of supervised release. All remain on bond
pending appeal.
II. ANALYSIS
On appeal, Veal, Watson and Haynes challenge the district
judge’s denial of their motions to suppress their statements after
Mercado’s death because the same judge had suppressed those
statements under Garrity in the civil rights trial. Camacho, Veal,
Watson and Haynes argue that the district judge improperly denied
their motions to dismiss based on 18 U.S.C. § 1512(b)(3) and
incorrectly instructed the jury on this statute. All contend that the
evidence was insufficient to support the verdicts against them. Veal
argues that the district judge improperly instructed the jury on
materiality. We will address each of these arguments.
A. Admission of Statements Previously Suppressed Under
Garrity
13
Veal, Watson and Haynes argue that the district judge erred by
permitting the government to use their statements concerning
Mercado’s death in the obstruction of justice trial when that judge had
suppressed those statements under Garrity in the civil rights trial. In
Garrity, the Supreme Court held that Fifth Amendment protections
apply to police officers subjected to interrogation by other law
enforcement officers and that incriminating statements made under
threat of termination for remaining silent are inadmissible in a
subsequent criminal prosecution concerning the matter of inquiry
absent a knowing and voluntary waiver.4 Garrity, 385 U.S. at 500, 87
S.Ct. at 620. Following an evidentiary hearing, the district judge
suppressed the officers’ statements under Garrity in the civil rights trial
because he concluded
that the Defendants Haynes, Sinclair, Veal and Watson
subjectively believed that failure to answer would result in
termination, that they believed they could not invoke the
4
The Fifth Amendment protection afforded by Garrity to an accused who reasonably
believes that he may lose his job if he does not answer investigation questions is self-executing;
that is, it arises by operation of law; no authority or statute needs to grant it. See Wiley v. Mayor
& City Council of Baltimore, 48 F.3d 773, 777 n.7 (4th Cir. 1995); Benjamin v. City of
Montgomery, 785 F.2d 959, 961 (11th Cir. 1986); Erwin v. Price, 778 F.2d 668, 670 (11th Cir.
1985).
14
Fifth Amendment without being fired, that these beliefs
under the facts of this case were objectively reasonable,
and that the actions of the State were directly implicated in
creating this belief.
Camacho, 739 F. Supp. at 1520. The district judge reasoned that,
because counsel had informed the officers “that they must give
statements and answer every question put by the investigators, that
they could not invoke the Fifth Amendment, and that they had Garrity
immunity,” id. at 1517-18, the officers “reasonably believed that they
were compelled to waive their Fifth Amendment rights during their
interviews with the investigating officers,” id. at 1518.
In the obstruction case, the government alleged that the officers
acted individually and collectively to impede the official investigation
into the death of Mercado. Veal, Watson and Haynes sought
suppression of their statements made to state investigating officials at
police headquarters on December 17, 1988.5 They argue that these
statements, suppressed under Garrity in the civil rights trial, should not
5
The indictment alleges as overt acts that Veal, Watson and Haynes “[o]n December 16,
1988 and December 17, 1988, in Miami, Florida, [each] . . . falsely told State of Florida law
enforcement investigators that he did not touch Leonardo Mercado, observe any contact with
Leonardo Mercado, or have any knowledge of what caused the injuries that resulted in the death
of Leonardo Mercado.” R1-1-6-7, ¶¶ I-K.
15
have been admitted into evidence in the obstruction case to establish
charges of conspiracy to obstruct justice, conspiracy to tamper with a
witness, tampering with a witness, and perjury. Concluding that Garrity
and the Fifth Amendment do not protect false statements from
subsequent prosecutions for such crimes as perjury and obstruction of
justice, the district judge admitted the officers’ statements.
Veal, Watson and Haynes contend that their statements
suppressed in the civil rights trial were per se inadmissible in the
obstruction of justice trial. They argue that statements declared to be
protected by Garrity are forever barred from use in any prosecution,
including one for perjury, false statements, or obstruction of justice.6
Their argument is premised on the notion that their statements were
6
In an appeal to this court by defense attorneys who were subpoenaed to testify before
the grand jury following the civil rights trial, we stated: “Immunity under Garrity prevents any
statements made in the course of the internal investigation from being used against the officers in
subsequent criminal proceedings.” In re Federal Grand Jury Proceedings, 975 F.2d 1488, 1490
(11th Cir. 1992) (per curiam). We note that the law-of-the-case doctrine does not apply in this
case because the issue in that appeal, denial by the district judge of the attorneys’ and intervenors
Veal, Watson and Haynes’s motions to quash the attorneys’ subpoenas based on the attorney-
client privilege, is different from the issue in this obstruction case of their giving false
statements. See Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1003 n.7 (11th Cir. 1997).
16
coerced because they would have been fired from the police
department if they had not provided statements.
In determining whether the government may use Garrity
statements in a subsequent federal, criminal prosecution, we note that
the Supreme Court has been resolute in holding that the Fifth
Amendment does not shield perjured or false statements. Concerning
false testimony before a grand jury, the Court spoke clearly and
strongly:
In this constitutional process of securing a witness’
testimony, perjury simply has no place whatsoever.
Perjured testimony is an obvious and flagrant affront to the
basic concepts of judicial proceedings. . . . Hence,
Congress has made the giving of false answers a criminal
act punishable by severe penalties . . . .
....
[A] witness sworn to tell the truth before a duly constituted
grand jury will not be heard to call for suppression of false
statements made to that jury, any more than would be the
case with false testimony before a petit jury or other duly
constituted tribunal.
United States v. Mandujano, 425 U.S. 564, 576, 582, 96 S.Ct. 1768,
1776, 1779 (1976) (emphasis added); see United States v. Wong, 431
U.S. 174, 178, 97 S.Ct. 1823, 1825 (1977) (regarding false, grand jury
testimony about bribing undercover police officers, the Court
17
emphasized that “the Fifth Amendment privilege does not condone
perjury. It grants a privilege to remain silent without risking contempt,
but it ‘does not endow the person who testifies with a license to commit
perjury.’” (quoting Glickstein v. United States, 222 U.S. 139, 142, 32
S.Ct. 71, 73 (1911)); see also United States v. Knox, 396 U.S. 77, 82,
90 S.Ct. 363, 366 (1969) (explaining that the predicament of having to
choose between incriminatory truth and falsehood, as opposed to
refusing to answer, does not justify perjury or answering falsely in a
case involving filing a false tax return, the Court concluded that the
defendant took “a course that the Fifth Amendment gave him no
privilege to take.”). Using this authority, our court declined to suppress
false grand jury testimony and upheld a conviction under 18 U.S.C. §
1623 for perjury. See United States v. Olmeda, 839 F.2d 1433 (11th
Cir. 1988); see also LaChance v. Erickson, ___ U.S. ___, ___, 118
S.Ct. 753, 756 (1998) (“It is well established that a criminal defendant’s
right to testify does not include the right to commit perjury.”).
Even in the case of statutorily immunized testimony, the “Court
has never held . . . that the Fifth Amendment requires immunity
18
statutes to preclude all uses of immunized testimony. . . . [N]either the
immunity statute nor the Fifth Amendment precludes the use of
respondent’s immunized testimony at a subsequent prosecution for
making false statements.“ United States v. Apfelbaum, 445 U.S. 115,
125, 131, 100 S.Ct. 948, 954, 957 (1980).7 Thus, an immunized
accused who testifies falsely may not use the self-incrimination clause
as a shield against a subsequent prosecution for perjury, false
statements, or obstruction of justice. Otherwise, an option would be
created that would make a mockery of conferring immunity on an
accused because the purpose of granting immunity would be
7
In Apfelbaum, the Supreme Court held that neither the federal use immunity statute nor
the Fifth Amendment precluded the use of a defendant’s false statements in a subsequent
criminal prosecution. See 18 U.S.C. § 6002 (providing that no testimony or other information
compelled under an immunity order may be used against the witness in any criminal trial “except
a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order”
(emphasis added)). The Apfelbaum defendant invoked his Fifth Amendment privilege during
grand jury testimony. After receiving use immunity under § 6002, he testified falsely. In
upholding his subsequent prosecution under the federal perjury statute, 18 U.S.C. § 1623, for
making false statements during testimony, the Court determined that neither the federal use
immunity statute nor the Fifth Amendment precluded the use of the defendant’s false statements
in a subsequent criminal prosecution. See Apfelbaum, 445 U.S. at 122-23, 126-27, 100 S.Ct. at
952, 955. We can analogize between the scope of the federal use immunity statute, addressed in
Apfelbaum, and Garrity analysis under the Fifth Amendment because our court has held that a
Garrity-protected statement is tantamount to use immunity. See Benjamin, 785 F.2d at 961;
Erwin, 778 F.2d at 670; Hester v. City of Milledgeville, 777 F.2d 1492, 1496 (11th Cir. 1985).
19
defeated.8 The Court noted that “[t]he legislative history of [18 U.S.C.]
§ 6002 shows that Congress intended the perjury and false-
declarations exception to be interpreted as broadly as constitutionally
permissible.” Id. at 122, 100 S.Ct. at 952. When an accused has been
accorded immunity to preserve his right against self-incrimination, he
must choose either to relinquish his Fifth Amendment right and testify
truthfully, knowing that his statements cannot be used against him in a
subsequent criminal prosecution regarding the matter being
investigated, or continue to assert the privilege and suffer the
consequences.9 There is no third option for testifying falsely without
incurring potential prosecution for perjury or false statements. See
Knox, 396 U.S. at 82, 90 S.Ct. at 366 (determining that the pressures
8
Although a “‘narrow exception,’” the Apfelbaum Court noted that perjury prosecutions
resulting from immunized testimony are permitted: “If the rule is that a witness who is granted
immunity may be placed in no worse a position than if he had been permitted to remain silent,
the principle that the Fifth Amendment does not protect false statements serves merely as a piece
of a legal mosaic justified solely by stare decisis, rather than as part of a doctrinally consistent
view of that Amendment.” 445 U.S. at 128 & n.11, 100 S.Ct. at 955-56 & n.11.
9
These consequences include a contempt order in the case of 18 U.S.C. § 6001immunity or forfeiture of any benefits under a plea/cooperation agreement in the case of
“pocket” immunity. Grants of informal or “pocket” immunity are evaluated under the same rules
as grants of formal or § 6001 immunity. See United States v. Harvey, 869 F.2d 1439, 1444 (11th
Cir. 1989) (en banc). Immunity under § 6002 provides use and derivative-use immunity, which
generally prevents the government from using the contents of the testimony in a criminal
prosecution of the individual. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653 (1972).
20
that accompany the obligation to tell the truth, such as in an
investigation, do not justify “communicating false information[, which
is] simply not testimonial compulsion”).
Like false testimony before a grand jury, the Court has not
excluded from criminal liability false statements made to governmental
agents or agencies, whether or not those statements were made
under oath. In upholding a conviction for falsely denying Communist
affiliation in an affidavit filed with a governmental agency, the Court
stated: “Our legal system provides methods for challenging the
Government’s right to ask questions–lying is not one of them. A citizen
may decline to answer the question, or answer it honestly, but he
cannot with impunity knowingly and willfully answer with a falsehood.”
Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360 (1969)
(footnote omitted). In determining that the false “exculpatory no”
answer in response to governmental agents conducting an
investigation is not excluded from prosecution for false statements, the
Court explained: “Certainly the investigation of wrongdoing is a proper
governmental function; and since it is the very purpose of an
21
investigation to uncover the truth, any falsehood relating to the subject
of the investigation perverts that function.” Brogan v. United States,
___ U.S. ___, ___, 118 S.Ct. 805, 809 (1998). The Court concluded
that “neither the text nor the spirit of the Fifth Amendment confers a
privilege to lie.” Id. at ___, 118 S.Ct. at 810. Holding that a
government agency may take adverse action against employees who
make false statements to agency investigators concerning alleged
misconduct, the Court determined that it was irrelevant that the
statements were not made under oath for the purpose of criminal
culpability. See LaChance, ___ U.S. at ___, 118 S.Ct. at 756. Thus,
the Court has determined that the Fifth Amendment does not protect
false statements from a later prosecution for perjury or false
statements whether they occur under oath, with immunity, or during a
governmental investigation.
Although the Supreme Court has not addressed the specific issue
before us where the false statements previously were suppressed in
the Garrity context, other circuits have held that the Fifth Amendment
and Garrity provide no insulation against a subsequent perjury or
22
obstruction of justice charge if a witness makes false statements. In
United States ex rel. Annunziato v. Deegan, 440 F.2d 304 (2d Cir.
1971), the defendant was convicted in state court for committing
perjury before a grand jury. He subsequently filed a habeas corpus
petition in which he asked the federal courts to reverse his conviction,
partly because he contended that his false statements had been
compelled in violation of Garrity. The Second Circuit analyzed this
argument as follows:
[A]ppellant claims that his testimony under compulsion
before the grand jury, because his failure to waive immunity
would have resulted in dismissal from public employment,
violated his privilege against self-incrimination under the
Fifth and Fourteenth Amendments. . . . [A]ppellant was not
prosecuted for past criminal activity based on what he was
forced to reveal about himself; he was prosecuted for the
commission of a crime while testifying, i.e. perjury. In short,
where a public employee may not be put to the Hobson’s
Choice of self-incrimination or unemployment, he is not
privileged to resort to the third alternative, i.e., lying. The
Supreme Court has squarely so held.
Id. at 306 (emphasis added).
In several cases, the Seventh Circuit followed the reasoning of
Annunziato and affirmed the convictions of Chicago police officers for
making false statements before a grand jury in violation of 18 U.S.C. §
231623, although the officers received Garrity protection for their
testimonies. In United States v. Devitt, 499 F.2d 135 (7th Cir. 1974),
that court determined that
Garrity and its progeny do not proscribe the use, in a
criminal prosecution under 18 U.S.C. § 1621 or § 1623, of a
defendant’s allegedly perjurious statements . . . . Garrity
provides the witness with adequate protection against the
government’s use, in subsequent criminal proceedings, of
information obtained as a result of his testimony, where his
refusal to testify would form the basis for disciplinary action
against him. Gardner [v. Broderick, 392 U.S. 273, 88 S.Ct.
1913, 20 L.Ed.2d 1082 (1968),] and [Uniformed] Sanitation
Men [Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 88
S.Ct. 1917, 20 L.Ed.2d1089 (1968),] provide the witness
with a shield against such disciplinary action based upon his
refusal to testify, in cases in which he refuses to do so,
believing that his testimony or the fruits thereof can be used
against him in subsequent criminal proceedings.
Together, these decisions provide adequate protection
of the witness’s Fifth Amendment rights. We find no reason
or justification for extending this umbrella of protection to
shield a witness against prosecution for knowingly giving
false testimony.
Id. at 142 (emphasis added); see also United States v. Pacente, 503
F.2d 543 (7th Cir. 1974) (en banc); United States v. Nickels, 502 F.2d
1173 (7th Cir. 1974).
The Third Circuit also addressed similar facts in Fraternal Order
of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 281 (3d
24
Cir. 1988), where a police officer union brought suit against the city and
argued that a questionnaire plus a polygraph examination that had to
be completed prior to an officer’s admission into a special unit of the
police department violated the officer’s Fifth Amendment rights. The
court explained:
[T]his argument [police union’s argument that threat of
demotion or failure to obtain promotion absent completion of
application violates Fifth Amendment] presents us with a
mixture of plainly erroneous and potentially meritorious but
more difficult issues. There can be no question, for
instance, that the police department may prosecute officers
for lying on the questionnaire under Pennsylvania law. The
fifth amendment does not protect a citizen against the
consequences of committing perjury. See U.S. ex rel.
Annunziato v. Deegan, 440 F.2d 304 (2d Cir. 1971)
(upholding public employee’s conviction for perjury based
upon testimony obtained under threat of discharge).
Lodge No. 5, 859 F.2d at 281 (emphasis added). Thus, the
Annunziato reasoning has influenced other circuits in addressing this
issue with the conclusion that the Fifth Amendment does not protect
false statements given during testimony that otherwise would be
protected by Garrity from future prosecutions concerning those false
statements.
25
We also adopt this rationale in our circuit. Under Garrity, an
accused in an internal investigation may be confronted with the grim
reality that he can either refuse to give any information and lose his job
or provide an incriminating statement about the matter under
investigation and not be prosecuted concerning that matter.10 An
accused may not abuse Garrity by committing a crime involving false
statements and thereafter rely on Garrity to provide a safe haven by
foreclosing any subsequent use of such statements in a prosecution for
perjury, false statements, or obstruction of justice. Significantly,
counsel advised Veal, Watson and Haynes to be truthful in giving their
statements to investigating authorities.11
10
Compare Erwin, 778 F.2d 668 (affirming dismissal of police officer who refused to
answer specific questions about an alleged gun-pointing incident, although departmental
regulations stated that his answers could not be used in a subsequent criminal investigation) and
Hoover v. Knight, 678 F.2d 578 (5th Cir. Unit B 1982) (upholding dismissal of a police officer
pursuant to a county administrative hearing, wherein the officer asserted her Fifth Amendment
right not to testify regarding various charges against her, although a subsequent criminal trial
resulted in her acquittal) with Womer v. Hampton, 496 F.2d 99 (5th Cir. 1974) (recognizing that,
because governmental employee was informed at an administrative inquiry that he was being
questioned regarding improprieties and irregularities that might warrant his dismissal, Garrity
precluded his statements from being used in a criminal proceeding regarding that matter).
11
In the civil trial, the district judge observed:
Robert Klausner [attorney for the Fraternal Order of Police] testified
unequivocally — and we credit his testimony – that on the night of the incident he
advised Defendants Haynes, Sinclair, Veal and Watson that the applicable rules
and regulations prohibited witness officers from invoking their privilege against
26
Although an accused may not be forced to choose between
incriminating himself and losing his job under Garrity, neither Garrity
nor the Fifth Amendment prohibits prosecution and punishment for
false statements or other crimes committed during the making of
Garrity-protected statements. Giving a false statement is an
independent criminal act that occurs when the individual makes the
false statement; it is separate from the events to which the statement
relates, the matter being investigated. See Lodge No. 5, 859 F.2d at281 n.7 (contrasting past criminal activity under investigation with
committing a crime while testifying); see also Olmeda, 839 F.2d at1436-37 nn. 5 & 7 (observing that a defendant may not use the Fifth
Amendment self-incrimination privilege to suppress false grand jury
testimony that results in a perjury prosecution). We agree with the
circuits that have addressed this issue before us and have determined
self-incrimination, that they would have to answer all questions truthfully and
finally that if they refused to answer they would be fired.
....
Defendants Haynes, Sinclair, Veal and Watson also persuasively argue that they
felt they were required to give a statement based upon the advice of counsel.
Attorney Klausner testified that his advice to the officers was to answer truthfully
every question put by the investigating officers, under penalty of job loss.
Camacho, 739 F. Supp. at 1516, 1517 (emphasis added).
27
that Garrity-insulated statements regarding past events under
investigation must be truthful to avoid future prosecution for such
crimes as perjury and obstruction of justice. Garrity protection is not a
license to lie or to commit perjury.
Watson and Haynes also argue that their statements were
coerced in violation of their Fifth Amendment rights under Mincey v.
Arizona, 437 U.S. 385, 98 S.Ct. 2408 (1978).12 The officers apparently
contend that the compulsion under which they gave their statements
caused the district judge to suppress their statements under Garrity in
the civil rights trial; therefore, those statements should not have been
used in the obstruction trial.13 This argument is unavailing. As we
12
Mincey, grounded in the Due Process Clause, requires the suppression of any
confession or statement obtained through official coercion that so completely overbore the will
of the accused that he effectively had no choice but to provide the statement. See Mincey, 437
U.S. at 398, 98 S.Ct. at 2416. An involuntary statement cannot be used by the prosecution for
any purpose at trial. See United States v. De Parias, 805 F.2d 1447, 1456 (11th Cir. 1986).
13
We have addressed the compulsion associated with Garrity, the implied threat of
dismissal or discipline unless satisfactory responses concerning the matter under investigation
are forthcoming. See Harrison, 132 F.3d at 682; Womer, 496 F.2d at 107; see also Devitt, 499
F.2d at 141-42 (describing the coercion involved with Garrity-protected statements as being the
threat of discharge, suspension, or disciplinary action upon refusal to testify). Additionally, our
court has distinguished between voluntariness in a Garrity situation and other circumstances
where Fifth Amendment voluntariness is implicated. See Pervis v. State Farm Fire & Cas. Co.,
901 F.2d 944, 947 (11th Cir. 1990); United States v. White, 589 F.2d 1283, 1286-87 (5th Cir.
1979).
28
have explained, Garrity precludes the use of protected statements in a
criminal prosecution regarding the investigated matter to which the
statements relate. Garrity does not prevent the admission of false
statements in a trial for perjury or obstruction of justice, crimes that
occurred at the time that the false statements were given. Logically,
the statements would have to be admitted in a perjury or obstruction of
justice trial for the jury to determine the falsity. The record in this case
shows that the conditions under which these experienced narcotics
police officers gave their false statements did not constitute Mincey
coercion, particularly with the presence and advice of counsel.14
Confronted with a difficult decision to give statements, the officers
made an additional decision: they voluntarily and deliberately chose to
provide false statements making them amenable to prosecution for the
crime of obstruction of justice.15
14
Our court has recognized that a statement is not involuntary if, “under the totality of
the circumstances,” it is the product of “free and rational choice” and not extracted “by any sort
of threats of violence, or obtained by any direct or implied promises, or by the exertion of any
improper influence.” Harris v. Dugger, 874 F.2d 756, 761 (11th Cir. 1989).
15
In addressing voluntariness under the Fifth Amendment, the Former Fifth Circuit
commented:
The fifth amendment preserves the right to choose, and the voluntariness of the
29
The predicament in which Veal, Watson and Haynes found
themselves at police headquarters in the early morning hours of
December 17, 1988, was of their own making. While they feared the
loss of their jobs if they claimed the Fifth Amendment and remained
silent, Garrity did not afford them refuge to give false statements to
investigators and not be prosecuted for obstruction of justice. Their
deliberate, false statements resulted from their independent, voluntary
choices and impeded the investigation of Mercado’s death. By giving
false statements, they obstructed justice relating to the investigation of
Mercado’s death and provided the avenue for prosecution in this case
which would have been unavailable if they had told the truth.
B. Interpretation and Application of 18 U.S.C. § 1512(b)(3)
Veal, Watson, Haynes, and Camacho argue that Count II, as
charged in the indictment and as the jury was instructed on it, fails to
state a violation of 18 U.S.C. § 1512(b)(3). They support their
choice is always affected in some way by the exigencies of a particular situation.
The voluntariness inquiry necessarily incorporates an understanding that
defendant cannot be free from conflicting concerns, and in any case, defendant
must weigh the relative advantages of silence and explanation.
White, 589 F.2d at 1287 (emphasis added).
30
argument by construing the statutory language and challenging the
federal nexus of their acts. We address both of these arguments.
1.Statutory Construction
Count II of the indictment, the only count on which Veal, Watson,
Haynes, and Camacho were convicted, states that they
did knowingly engage in misleading conduct toward another
person, to wit: law enforcement investigators of the State of
Florida, with the intent to hinder, delay, and prevent the
communication to a law enforcement officer and judge of
the United States of America of information relating to the
possible commission of a federal offense, that is, the
defendants did knowingly mislead State of Florida law
enforcement investigators, and other persons, in order to
prevent them from communicating to agents of the Federal
Bureau of Investigation and the United States Department
of Justice and judges of the United States of America,
information relating to the true circumstances surrounding
the death of Leonardo Mercado on December 16, 1988.
All in violation of Title 18, United States Code,
Sections 1512(b)(3) and 2.
R1-1-9-10. The statute at issue, 18 U.S.C. § 1512(b)(3), provides in
relevant part:
Tampering with a witness, victim, or an informant
....
(b) Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or
attempts to do so, or engages in misleading conduct toward
another person, with intent to–
31
....
(3) hinder, delay, or prevent the
communication to a law enforcement officer or
judge of the United States of information relating
to the commission or possible commission of a
Federal offense or a violation of conditions of
probation, parole, or release pending judicial
proceedings;
shall be fined under this title or imprisoned not more than
ten years, or both.
18 U.S.C. § 1512(b)(3) (emphasis added).
Veal, Watson, Haynes, and Camacho contend that “another
person” in § 1512(b)(3) does not refer to state law enforcement agents
but to persons who have relevant information regarding the possible
commission of a federal crime and, thus, can be hindered, delayed or
prevented from communicating this information to federal officers. In
short, they argue that the statute protects the potential messenger or
victim, who already possesses pertinent knowledge, rather than the
recipient or investigator, who acquires information. They fortify their
argument with the title of the statute, “Tampering with a witness, victim,
or an informant,” which they claim plainly evidences that Congress
intended the statute to protect only those individuals who have
information regarding the commission or possible commission of a
32
federal crime. 18 U.S.C. § 1512. The district judge rejected this
argument in a collective motion to dismiss Count II, and we agree.
Our court reviews a district court’s statutory interpretation and
application de novo. See United States v. Grigsby, 111 F.3d 806, 816
(11th Cir. 1997). In construing a statute, we first look to the plain
language of the statute. See Albernaz v. United States, 450 U.S. 333,
336, 101 S.Ct. 1137, 1141 (1981). Words are interpreted with their
ordinary and plain meaning because we assume that Congress uses
words in a statute as they are commonly understood; we give each
provision full effect. See United States v. McLeod, 53 F.3d 322, 324
(11th Cir. 1995). Review of legislative history is unnecessary “unless a
statute is inescapably ambiguous.” Solis-Ramirez v. United States
Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam);
see United States v. Rush, 874 F.2d 1513, 1514 (11th Cir. 1989)
(stating that, where statutory language is clear, we will not create an
ambiguity with legislative history). Therefore, we deem the plain
language of the statute to be conclusive as clearly expressing
legislative intent, unless the resulting application would be “absurd” or
33
“internal inconsistencies” must be resolved. See United States v.
Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527 (1981).
The application of these principles exposes the infirmities in the
arguments by Veal, Watson, Haynes, and Camacho. To reach an
analysis of legislative history, they first must show that “another
person” is ambiguous and requires the aid of legislative history for
interpretation. As the district court found, there is no ambiguity in
“another person,” which is easily and commonly understood to mean
any person, regardless of whether he possessed knowledge of the
commission or possible commission of a federal crime from being an
eyewitness or investigating official. The statute broadly forbids one to
“engage[] in misleading conduct toward another person, with the intent
to . . . hinder, delay, or prevent the communication to a law
enforcement officer or judge of the United States of information relating
to the commission or possible commission of a Federal offense.” 18
U.S.C. § 1512(b)(3). The government alleged that Veal, Watson,
Haynes, and Camacho misled state investigators by not telling them
the true circumstances surrounding Mercado’s death to prevent the
34
investigators from learning the actual facts of his death and, thereby,
precluding their communicating those facts to the Federal Bureau of
Investigation, the United States Department of Justice, and judges of
the United states. The conduct of Veal, Watson, Haynes, and
Camacho falls within the broad language of § 1512(b)(3).16
Furthermore, using this common definition does not lead to an
absurd result. Veal, Watson, Haynes, and Camacho argue that
acceptance of the plain language of the statute would federally
criminalize every false statement made by anyone to any police officer.
The clear language of the statute, however, negates that interpretation
because of the statutorily prescribed federal nexus with federal
agencies and judges. There is nothing irrational about a federal statute
that seeks to prevent any person from perverting the truth-seeking
function of investigative or judicial processes. See McLeod, 53 F.3d at
16
As we have described previously, the misleading conduct by Veal, Watson and
Haynes consisted of their false statements about their respective participation in the injuries that
resulted in Mercado’s death and their subsequent, collusive meeting at the police department.
Camacho’s misleading conduct was his presenting himself to a police technician and asking her
to photograph his torn shirt, purportedly resulting from his involvement in the altercation with
Mercado. The jury obviously believed that Camacho had torn his shirt and removed the pocket
to convey the misleading impression that Mercado had been active and aggressive during the
incident that resulted in his death.
35
324 (observing that interpreting 18 U.S.C. § 1513(a)(1) to prohibit
retaliation against witnesses in civil as well as criminal suits does not
lead to an absurd result).
Additionally, a plain-language reading of § 1512(b)(3) does not
render the statute redundant, implausible, or inconsistent with other
sections. Veal, Watson, Haynes, and Camacho rely on the caption or
title of 18 U.S.C. § 1512 as evidence that Congress did not intend that
persons with no pre-existing knowledge be included within the purview
of this statute. To construe the statute, they urge the application of the
doctrine of ejusdem generis, representing “that where general words
follow a specific enumeration of persons or things, the general words
should be limited to persons or things similar to those specifically
enumerated.” Turkette, 452 U.S. at 581, 101 S.Ct. at 2527
(determining ejusdem generis doctrine inapplicable, notwithstanding
statutory title, in interpreting scope of the RICO statute).
Consequently, Veal, Watson, Haynes, and Camacho argue that
“another person” is constricted by the statutory title to mean “witness,
victim, or informant.”
36
The rule of ejusdem generis is “no more than an aid to
construction and comes into play only when there is some uncertainty
as to the meaning of a particular clause in a statute.” Id. at 581, 101
S.Ct. at 2528. In declining to apply the principle of ejusdem generis to
determine that only false statements that pervert governmental
functions are encompassed by 18 U.S.C. § 1001, the Court stated that
“it is not, and cannot be, our practice to restrict the unqualified
language of a statute to the particular evil that Congress was trying to
remedy–even assuming that it is possible to identify that evil from
something other than the text of the statute itself.” Brogan, ___ U.S.
at ___, 118 S.Ct. at 809. By insisting that the statute be read in the
most restrictive way, Veal, Watson, Haynes, and Camacho have
attempted to create an uncertainty in the statute where none exists.
Nothing in the statutory language or the caption contains this
artificial definition that they advance. The title states “witness”; it does
not state or require that the witness have pre-existing knowledge.
Significantly, police officers, as a consequence of their occupation,
become witnesses as a matter of course in each investigation in which
37
they are involved. Thus, the terms used in the statutory title do not
exempt police officers. The fact that Congress did not use
restrictive language in drafting § 1512(b)(3) confirms our logical
conclusion that “witness,” as used in the caption, can be interpreted to
encompass state investigators. See United States v. Castro, 89 F.3d
1443, 1456 (11th Cir. 1996) (rejecting appellants’ interpretation that
“another” in 18 U.S.C. § 1346 is limited to nongovernmental victims
and determining that the plain language of the statute and its legislative
history support a nonrestrictive reading of “another” to include the state
as well as all governmental entities), cert. denied, ___ U.S. ___, 117
S.Ct. 965 (1997); United States v. Yeatts, 639 F.2d 1186, 1189 (5th
Cir. Unit B Mar. 1981) (interpreting “coin” in 18 U.S.C. § 485 in a
nonrestrictive manner to include counterfeit coins that are not current
legal tender).
Even if review of the legislative history were appropriate, it
rejects the rule of ejusdem generis and discredits the restrictive view of
the statute presented by Veal, Watson, Haynes, and Camacho. See
Victim & Witness Protection Act of 1982, S. Rep. No. 97-532, at 18
38
(1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2524. The Senate
Report evinces legislative intent to expand the existing “obstruction of
justice” statutory scheme by enacting § 1512.17 Id. Expressing concern
that existing statutes failed to include various forms of obstructive
conduct, the Senate Committee stated its conclusion that §
1512(b)(3)18 should be read in view of congressional recognition that
the purpose of preventing an obstruction or miscarriage of
justice cannot be fully carried out by a simple enumeration
of the commonly prosecuted obstruction offenses. There
must also be protection against the rare type of conduct that
is the product of the inventive criminal mind and which also
thwarts justice.
Id. (emphasis added). To reach such cases, the Senate Report states
that the Committee
does not intend that the doctrine of ejusdem generis be
applied to limit the coverage of [subsection (b)(3)]. Instead,
the analysis should be functional in nature to cover conduct
the function of which is to tamper with a witness, victim, or
17
The version of 18 U.S.C. § 1503 in effect before 1982 had been the only statute which
directly addressed attempts to influence or tamper with witnesses. The 1982 amendments
revised § 1503 by excluding any reference to witnesses and limiting its scope to officers and
jurors. Section 1512, entitled “Tampering with a witness, victim, or an informant,” and § 1513,
entitled “Retaliating against a witness, victim, or an informant,” created an entirely new and
broader set of obstruction of justice offenses.
18
Subsection (b)(3) of 18 U.S.C. § 1512 was originally enacted and discussed in the
Senate Report as subsection (a)(3).
39
informant in order to frustrate the ends of justice. For
example, a person who induces another to remain silent or
to give misleading information to a Federal law enforcement
officer would be guilty under subsection [(b)(3)], irrespective
of whether he employed deception, intimidation, threat, or
force as to the person.
Id. (emphasis added).
Thus, the Senate Report on subsection (b)(3) reveals that it is to
be read to include a wide range of conduct that thwarts justice. The
actions of Veal, Watson, Haynes, and Camacho fit within the
Committee’s discussion of proscribed conduct, which expressly
includes activities designed to create witnesses as part of a cover-up
and to use unwitting third parties or entities to deflect the efforts of law
enforcement agents in discovering the truth. Veal, Watson, Haynes,
and Camacho used deception to thwart the investigation into
Mercado’s death by creating false and misleading information, which
they related to state investigators with the knowledge that this
information would be relayed to and relied upon by other investigators.
To ensure that they would be exonerated of any wrongdoing in
Mercado’s death, they further used police officers and personnel, such
as the technician photographer of Camacho’s shirt, who they either
40
knew would be or likely would be witnesses in the Mercado
investigation, as conduits to create false and misleading evidence
about the events resulting in Mercado’s death. Cf. United States v.
King, 762 F.2d 232 (2d Cir. 1985) (observing that § 1512(b)(3) should
not have been charged because the alleged misleading conduct,
outright subornation of perjury, did not involve any deceptive or
misleading conduct). FBI agents who were investigating the possible
commission of a civil rights crime were among the investigators who
learned of and relied upon this contrived information and evidence
provided by Veal, Watson, Haynes, and Camacho. It is clear that
Congress intended § 1512(b)(3) to be used to punish deceptive
methods of impeding justice and that it covers the conduct of these
police officers.
2. Federal Nexus
Veal, Watson, Haynes, and Camacho also argue that their
conviction for violating § 1512(b)(3) was improper because all that was
charged in the indictment and proved at trial was that false or
contrived and misleading information was given to state investigators
41
with no knowledge or intent that this information would be
communicated to federal authorities relative to a federal crime or
investigation. Since the statute requires that a violator “hinder, delay,
or prevent the communication to a law enforcement officer or judge of
the United States of information relating to the commission or possible
commission of a Federal offense,” they contend that their actions,
however reprehensible and, perhaps, violative of state law,19 did not
have sufficient federal nexus to support their convictions for violating §
1512(b)(3). 18 U.S.C. § 1512(b)(3). Thus, they posit that their §
1512(b)(3) convictions cannot stand, not only because their false and
misleading information was not directly communicated to federal
agents, but also because there was no existing or imminent federal
investigation of a crime of which they had specific knowledge and
intended to hinder at the time that their subject actions occurred. They
further argue that the district judge’s instructions on § 1512(b)(3)
19
A similar Florida statute, entitled “Tampering with a witness, victim, or informant,”
states that it is a crime to “knowingly . . . engage[] in misleading conduct toward another person .
. . with intent to cause or induce any person to . . . [h]inder, delay, or prevent the communication
to a law enforcement officer or judge of information relating to the commission or possible
commission of an offense.” Fla. Stat. 914.22(1)(e).
42
regarding this issue misled the jury and erroneously resulted in their
convictions.
This federal nexus argument implicates the specific intent or
mens rea requirements for violating § 1512(b)(3), which we must
analyze in the proper statutory context. The district judge gave the
following jury instruction, explaining the specific intent and conduct
necessary to find a violation of § 1512(b)(3):
In order to sustain its burden of proof as to this charge,
count two, the Government must prove the following three
essential elements beyond a reasonable doubt: First, that
the defendant knowingly engaged in misleading conduct
toward another person.
Second, that the defendant did so with the intent to
hinder, delay or prevent the communication to a law
enforcement officer or Judge of the United States.
And, third, that such information related to the
commission or possible commission of a Federal offense.
....
[T]he Government does not need to prove any state of mind
with respect to the circumstances that the Judge or law
enforcement officer is an official or employee of the Federal
Government. That is, the Government does not need to
prove that the defendant knew that the law enforcement
officer was a Federal law enforcement officer, or that the
Judge was a Federal Judge, so long as the law enforcement
officer or Judge is, in fact, a law enforcement officer or
Judge of the United States. The term “law enforcement
officer” simply means an officer or employee of the Federal
Government, or a person authorized to act for or on behalf
43
of the Federal Government or serving the Federal
Government as an advisor or consultant authorized under
the law to engage in or supervis[e] the prevention,
detection, investigation, or prosecution of an offense.
While the Government must prove, ladies and
gentlemen of the jury, beyond a reasonable doubt that the
defendant intended to hinder, delay or prevent the
communication of information actually related to the
commission or possible commission of a Federal offense,
the Government does not need to prove that the defendant
knew that the offense was Federal in nature.
R43-26, 28 (emphasis added). At the outset, we recognize that the
actions of Veal, Watson, Haynes, and Camacho on December 16 and
17, 1988, constituted intentional “misleading conduct” under §
1512(b)(3).20 Our inquiry is whether they needed to know at the time of
their conduct that their misleading information would be communicated
20
The statutory, specific-intent definition of “misleading conduct” as it applies to §
1512(b)(3) and the conduct of Veal, Watson, Haynes, and Camacho is
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a
portion of such statement to be misleading, or intentionally concealing a material
fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing
or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample,
specimen, map, photograph, boundary mark, or other object that is misleading in
a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead.
18 U.S.C. § 1515(a)(3).
44
to federal law enforcement agents or a federal judge or that their
involvement in the Mercado incident was a federal crime. Therefore,
we must analyze the specific intent and federal nexus requirements for
violations of § 1512(b)(3) as opposed to violations 18 U.S.C. § 150321and §§ 1512(a),22 (b)(1), and (2),23 the
21
Entitled “Influencing or injuring officer or juror generally,” § 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
magistrate judge 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, magistrate judge, 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 punished as
provided in subsection (b). If the offense under this section occurs in connection
with a trial of a criminal case, and the act in violation of this section involves the
threat of physical force or physical force, the maximum term of imprisonment
which may be imposed for the offense shall be the higher of that otherwise
provided by law or the maximum term that could have been imposed for any
offense charged in such case.
18 U.S.C. § 1503.
22
Subsection 1512(a) provides:
(a)(1)Whoever kills or attempts to kill another person, with intent to–
(A) prevent the attendance or testimony of any person in an official
proceeding;
(B) prevent the production of a record, document, or other object,
in an official proceeding; or
(C) prevent the communication by any person to a law
45
statutes that Veal, Watson, Haynes, and Camacho argue are
analogous to § 1512(b)(3) and, thus, use to support their positions.
enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal
offense or a violation of conditions of probation, parole, or release
pending judicial proceedings;
shall be punished as provided in paragraph (2).
18 U.S.C. § 1512(a).
23
Subsections 1512(b)(1) and (2) provide:
(b) Whoever knowingly uses intimidation or physical force, threatens, or
corruptly persuades another person, or attempts to do so, or engages in misleading
conduct toward another person, with intent to–
(1) influence, delay, or prevent the testimony of any person in an
official proceeding;
(2) cause or induce any person to–
(A) withhold testimony, or withhold a record,
document, or other object, from an official
proceeding;
(B) alter, destroy, mutilate, or conceal an object
with intent to impair the object’s integrity or
availability for use in an official proceeding;
(C) evade legal process summoning that person to
appear as a witness, or to produce a record,
document, or other object, in an official proceeding;
or
(D) be absent from an official proceeding to which
such person has been summoned by legal process .
..
....
shall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. §§ 1512(b)(1) & (2).
46
Congress has enacted numerous obstruction of justice statutes
designed to criminalize a variety of conduct. See generally 18 U.S.C.
§§ 1501-1517. These statutes contain distinct jurisdictional
prerequisites necessary for invoking federal authority to prosecute
specific conduct. Different clauses in § 1512 prescribe different bases
upon which federal jurisdiction is predicated.
Sections 1512(a)(1)(A), (a)(1)(B), and (b)(2)(A)-(D) all require that
the proscribed conduct occur in the context of an “official proceeding.”
Section 1515 defines “official proceeding” as a proceeding in any
federal court, federal grand juries, congressional hearings, federal
agencies, and interstate insurance. See 18 U.S.C. § 1515(a). In
contrast, §§ 1512(a)(1)(C) and (b)(3), the subsection under which this
case arises, contain a different jurisdictional basis: the defendant must
have committed the obstructive conduct with the intent to “prevent,” in
§ 1512(a)(1)(C), or “hinder, delay, or prevent,” in § 1512(b)(3)
communication to a federal law enforcement officer or judge
information relating to the commission or possible commission of a
federal crime. 18 U.S.C. § 1512(a)(1)(C) & (b)(3). Consistent with the
47
previously discussed legislative history, which evidences congressional
intent to broaden the scope of the obstruction of justice scheme, the
jurisdictional basis under these subsections is not limited to “official
proceedings” as is the case with the remaining provisions of § 1512.
Instead, federal jurisdiction under § 1512(b)(3) is based on the federal
interest of protecting the integrity of potential federal investigations by
ensuring that transfers of information to federal law enforcement
officers and judges relating to the possible commission of federal
offenses be truthful and unimpeded. By its terminology, § 1512(b)(3)
does not depend on the existence or imminency of a federal case or
investigation but rather on the possible existence of a federal crime
and a defendant’s intention to thwart an inquiry into that crime. As §§
1512(a)(1)(A), (a)(1)(B), and (b)(2)(A)-(D) evidence, Congress could
have limited the conduct proscribed in § 1512(b)(3) if that had been its
intention.
The reliance of Veal, Watson, Haynes, and Camacho on United
States v. Shively, 927 F.2d 804 (5th Cir. 1991), therefore, is misplaced.
In Shively, defendants-appellants intimidated a witness by insinuating
48
harm to his family and, consequently, caused him to testify falsely at a
deposition for a case pending in state court two and a half years before
a federal grand jury indictment. See id. at 810-11. Because the
criminal conduct in that case did not concern a federal “official
proceeding” as required under § 1512(b)(1), the Fifth Circuit reversed
the convictions. Thus, the jury charge in that case is inapplicable to
this case involving § 1512(b)(3). The Fifth Circuit did note that the
intimidation at issue in Shively well might have been within the ambit of
§ 1512(b)(3), which “speaks more broadly” because the limitation of
“official proceeding” is absent. Id. at 812.
Similarly, the Supreme Court’s decision in United States v.
Aguilar, 515 U.S. 593, 115 S.Ct. 2357 (1995), concerning a federal
judge who gave false and misleading information to FBI agents during
a grand jury investigation, does not assist Veal, Watson, Haynes, and
Camacho. That case involved the Court’s consideration of the catchall
provision of § 1503, which prohibits anyone from corruptly endeavoring
to influence or obstruct “the due administration of justice.” 18 U.S.C. §
1503(a). The Court recognized that the federal nexus meant by “due
49
administration of justice” is that the obstructive act “have a relationship
in time, causation or logic with the judicial proceedings.” Aguilar, 515
U.S. at 599-600, 115 S.Ct. at 2362. With respect to specific intent, the
Court explained that “if the defendant lacks knowledge that his actions
are likely to affect the judicial proceeding, he lacks the requisite intent
to obstruct.” Id. at 599, 115 S.Ct. at 2362.
In terms of sufficiency of evidence to support Aguilar’s conviction,
the Court held that his false statements to an FBI agent were
insufficient to meet that nexus in the absence of proof that he knew
that such statements would be provided to a grand jury. The request
by Veal, Watson, Haynes, and Camacho that we superimpose the
nexus requirement of “due administration of justice” in § 1503 onto the
different federal nexus requirement of § 1512(b)(3) is misguided. In
Aguilar, the Court sought to place the phrase “due administration of
justice” in the context of a legitimate federal interest that was
consistent with the amorphous language used by Congress. The
Court determined that the phrase “due administration of justice”
connotes the federal government’s interest in preserving the integrity of
50
a judicial proceeding. Other obstruction statutes, such as § 1512(b)(3)
at issue in this case, implicate different federal interests, which
specifically do not identify as the federal interest a federal judicial
proceeding, pending or contemplated.24
Section 1512(b)(3), at issue in this case, does not connect the
federal interest with an ongoing or imminent judicial proceeding or the
defendant’s knowledge of one. Instead, the federal interest derives
from the character of the affected activity, the transmission of
information to federal law enforcement agents and/or a federal judge
concerning a possible federal crime. Seeking to foster the
communication of truthful, nonmisleading information to federal
24
In § 1505, the federal interest derives from the nature of the affected proceeding, a
federal agency or congressional committee, but the statute does not require that a proceeding be
pending or contemplated. The federal interest in § 1511 stems from the nature of the affected
activity, state-regulated gambling enterprises, but there is no requirement of either an ongoing or
imminent state or federal proceeding. In the second and third clauses of § 1503, the federal
interest comes from the status of the targeted person, a federal juror, but no judicial proceeding is
required. In §§ 1512(a)(1)(A)-(B), (b)(1), and (b)(2)(A)-(D), the federal interest is the status of
the targeted person, potential witnesses in “official proceedings,” but the statute expressly states
that the proceeding “need not be pending or about to be instituted at the time of the offense.” 18
U.S.C. § 1512(e)(1); see United States v. Kelley, 36 F.3d 1118, 1128 (D.C. Cir. 1994)
(concluding that, even where the statute requires proof of an “official proceeding,” § 1512(e)(1)
provides that the jury need only be able to infer reasonably that a criminal investigation,
including a grand jury proceeding, might be instituted, not that one is pending or is about to be
initiated when the obstructive conduct occurred).
51
authorities regarding a possible federal crime is the important federal
interest that § 1512(b)(3) effectuates. Consequently, the specifically
stated federal nexus in § 1512(b)(3), and not the Aguilar interpretation
of the federal nexus in § 1503, controls our analysis of the scope of §
1512(b)(3). The district judge’s instructions comported with §
1512(b)(3) by not requiring the jury to find the existence or imminency
of an official federal proceeding.
Significantly, § 1512(f)(2) expressly states that, for purposes of §
1512 prosecutions, “no state of mind need be proved with respect to
the circumstance” that the law enforcement officer25 or judge is a
federal agent or federal judge or serving as a federal advisor or
25
As used in § 1512, “law enforcement officer”
means an officer or employee of the Federal Government, or a
person authorized to act for or on behalf of the Federal
Government or serving the Federal Government as an advisor or
consultant–
(A) authorized under law to engage in or supervise
the prevention, detection, investigation, or
prosecution of an offense; or
(B) serving as a probation or pretrial services officer under this
title[.]
18 U.S.C. § 1515(a)(4). Because of the concurrent jurisdiction of state and federal authorities in
such areas as drug interdiction and homocides as well as their common goal of law enforcement,
we recognize that state police officers can serve as advisors or consultants to federal agents in
the “prevention, detection, investigation, or prosecution” of various federal crimes. Id. at §
1515(a)(4)(A).
52
consultant. 18 U.S.C. § 1512(f)(2). For violation of § 1512(b)(3), it is
sufficient if the misleading information is likely to be transferred to a
federal agent.26 All that was required for Veal, Watson and Haynes’s
violation of § 1512(b)(3) was the possibility or likelihood that their false
and misleading information would be transferred to federal authorities
irrespective of the government authority represented by the initial
investigators.27 See United States v. Fortenberry, 971 F.2d 717, 719,
26
In the context of similarly worded 18 U.S.C. § 1512(a)(1)(C), which refers to an
individual who “kills or attempts to kill another person, with intent to . . . prevent the
communication by any person to a law enforcement officer” or federal judge “of information
relating to the commission or possible commission of a Federal offense,” other circuits have
concluded that possible or potential communication of information to federal authorities is
sufficient. Id.; see, e.g., United States v. Stansfield, 101 F.3d 909, 918 (3d Cir. 1996) (holding
that communication to any person who “might communicate with the federal authorities” was
sufficient for violation of § 1512(a)(1)(C) (first emphasis added)); United States v. Romero, 54
F.3d 56, 62 (2d Cir. 1995), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449 (1996) (“There need not
be an ongoing investigation or even any intent to investigate. Rather, the killing of an individual
with the intent to frustrate the individual’s possible cooperation with federal authorities is
implicated by the statute.” (emphasis added)); United States v. Edwards, 36 F.3d 639, 645 (7th
Cir. 1994) (holding that the essential mental state for violation of § 1512(a)(1)(C) is that “the
defendant believed that a person might furnish information to federal officials and that he killed
or attempted to kill that person in order to prevent such disclosure” (second emphasis added));
United States v. Galvan, 949 F.2d 777, 783 (5th Cir. 1991) (“[T]he statute focuses on the
defendant’s intent: whether she thought she might be preventing [the witness’s] future
communication of information” (emphasis added)); see also United States v. Leisure, 844 F.2d
1347, 1364 (8th Cir. 1988) (“[I]t is only necessary for a defendant to have believed that a witness
might give information to federal officials, and to have prevented this communication, to violate
18 U.S.C. § 1510.” (emphasis added)).
27
On appeal, Veal, Watson and Haynes restate in jurisdictional terms their contention
that § 1512(b)(3) is inapplicable because their false and misleading statements concerning the
circumstances of Mercado’s death were made to state, not federal, investigators. As we have
explained, the possibility that their false and misleading statements regarding their involvement
53
720 n.9 (11th Cir. 1992) (affirming § 1512(b)(3) conviction for
physically threatening a witness to prevent statements concerning
unlawful firearm possession in violation of 18 U.S.C. § 922(g), which
was discovered and investigated by local police before federal officials
became involved).
Likewise, § 1512(b)(3) does not require that a defendant know
the federal nature of the crime about which he provides information
because the statute criminalizes the transfer of misleading information
which actually relates to a potential federal offense, regardless of
whether the communicator of such information knows or believes that
the crime about which he knowingly provides false or misleading
information is federal.28 Indeed, it would be ironic if congressional
intent to ensure the integrity of investigations into possible federal
crimes could be defeated simply by a defendant’s ignorance, feigned
in Mercado’s death would be transmitted to federal authorities was sufficient for violation of §
1512(b)(3).
28
Based on evidence that defendant-appellant’s threats of physical harm to witnesses to
prevent them from communicating information relating to the commission or possible
commission of a federal crime to law enforcement officers, the Tenth Circuit held that “a threat
does not necessarily have to succeed and cause the person threatened to refrain from giving
information to law enforcement officers” for § 1512(b)(3) to be violated. United States v.
Dunning, 929 F.2d 579, 581 (10th Cir. 1991).
54
or real, about the federal character of the crime. As the district judge
determined, the statute provides that one who transmits misleading
information with the intent to hinder, delay or prevent the
communication of information to a law enforcement officer or judge is
accountable under § 1512(b)(3) when the false or misleading
information relates to a potential federal crime and that information
does reach a federal agent or judge.
By its plain wording, § 1512(b)(3) is designed to ensure that
information received by federal investigators or judges regarding a
potential federal crime be correct, truthful, and complete to facilitate a
full and fair investigation and adjudication. It is irrelevant to that inquiry
whether the person who provides false or misleading information that
ultimately becomes relevant to a federal investigation intended that a
federal investigator or judge receive that information; it is only relevant
that a federal investigator or judge received it. See Fortenberry, 971
F.2d at 720 n.9. In this case, the evidence established that a federal
agency, the FBI, received the misleading information in the course of
its investigation of a possible civil rights violation that resulted in
55
Mercado’s death. The exclusion of any requirement that the
defendant know that the misleading information that he provides will be
communicated to an official with federal authority negates the specific
intent mens rea urged by Veal, Watson, Haynes, and Camacho.
Because the district judge correctly interpreted § 1512(b)(3) as it was
charged relative to the facts in this case, his denials of Veal, Watson,
Haynes, and Camacho’s pretrial motions to dismiss Count II as well as
their post-trial motions challenging the jury instructions were proper.
C. Sufficiency of the Evidence
Veal, Watson, Haynes, and Camacho argue that the evidence
was insufficient to support their convictions for violating § 1512(b)(3),
both as to their conduct or actus reus and specific intent or mens rea.
The district judge denied their post-trial motions requesting acquittal
notwithstanding the verdict or, alternatively, for a new trial, wherein
they raised the same arguments. To the extent that they argue that
their acquittal on Count I, alleging conspiracy to violate 18 U.S.C. §§
1503 and 1512, establishes insufficiency of the evidence to support
their convictions on Count II, their argument improperly conflates the
56
distinction between insufficiency of the evidence and inconsistent
verdicts. The Supreme Court has explained that “[s]ufficiency-of-the
evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of
guilt beyond a reasonable doubt,” a review that is “independent of the
jury’s determination that evidence on another count was insufficient.”
United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478 (1984).
Thus, Veal, Watson, Haynes, and Camacho’s acquittal on Count I is
irrelevant to our singular focus and determination of whether the
evidence adduced at trial supports their convictions under Count II for
violation of § 1512(b)(3). See United States v. Church, 955 F.2d 688,
695 (11th Cir. 1992) (recognizing that inconsistent verdicts do not
defeat a defendant’s conviction).
We review challenges to sufficiency of the evidence de novo and
assess the evidence in the light most favorable to the prosecution.
See United States v. Suba, 132 F.3d 662, 671 (11th Cir. 1998). We
make all reasonable inferences and credibility choices in favor of the
jury’s verdict as we evaluate the evidence to determine whether “‘any
57
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979)). To prove a violation
of § 1512(b)(3), the government must establish beyond a reasonable
doubt that the defendant knowingly and willfully (1) engaged in
misleading conduct toward another person, (2) with the intent to hinder,
delay or prevent the communication of information to a federal law
enforcement officer or federal judge, (3) about the commission or the
possible commission of a federal crime. See 18 U.S.C. § 1512(b)(3).
We have explained that “another person” is unrestricted and
includes the state investigators, who were the conduit for relaying false
and misleading information imparted to them by Veal, Watson and
Haynes to federal authorities. Furthermore, because § 1512(f)
provides that no state of mind is needed for violation of § 1512(b)(3),
we have explained that the officers did not need to know that their false
and misleading statements would be relayed to federal authorities, the
FBI, or that their actions constituted a federal crime at the time of their
conduct. Pursuant to the district judge’s accurate instructions on these
58
elements of violation of § 1512(b)(3), our focus in analyzing the
sufficiency-of-the-evidence arguments will be on the actus rea, or Veal,
Watson, Haynes, and Camacho’s intentional actions.
1. Veal, Watson and Haynes
The culpability of Veal, Watson and Haynes is based on their
December 17, 1988, statements wherein they disavowed touching
Mercado, observing any contact with him, or having any knowledge of
the cause of his injuries29 and also denied meeting at the police
department after Mercado’s death to discuss the incident.30 The trial
evidence revealed that, by the time that Veal, Watson and Haynes
made their statements at approximately 2:00 A.M. on December 17,
1988, they knew that Mercado was dead. They also knew that the
state investigators who questioned them were obtaining information
about how Mercado received the injuries that resulted in his death.
Veal, Watson and Haynes unequivocally avowed that, when they
29
The indictment identifies these statements as Overt Acts I, J and K. See R1-1-6-7.
30
The indictment identifies these statements as Overt Acts F, G and H. See R1-1-6.
59
entered Mercado’s residence, the struggle was over and that the
injured Mercado was lying on the floor.
Nevertheless, reasonable jurors could disbelieve those
statements based upon the blood-spatter evidence, which conclusively
placed Veal, Watson, Haynes, and Camacho at the scene at the time
of Mercado’s fatal injuries. Although Veal professed noninvolvement,
the blood-spatter evidence showed that he had struck Mercado
multiple times using medium to medium-high force and that he was
present when others struck Mercado. Similarly, that evidence showed
that Watson had kicked Mercado in the head with his shoe as many as
four times and that he knew that officers other than Camacho also had
kicked Mercado. The blood-spatter evidence additionally revealed
that Haynes kicked Mercado in the face at least once and that he was
present when others struck Mercado.
Although Veal, Watson and Haynes portrayed themselves as
being ignorant of any attempt to discuss collectively the Mercado
incident in a meeting at the police station, apparently to coordinate
their stories, the jurors reasonably could have believed the testimonies
60
of various eyewitnesses that these three officers and Camacho had
met behind closed doors at the police department after the incident.
Reading Veal, Watson and Haynes’s strikingly similar statements
together, the jurors fairly could have decided that the officers colluded
to create the impression that they were innocent bystanders who came
upon the scene after the altercation and that they had not been
involved in any efforts to distort the true facts. The jurors reasonably
could have concluded that, by intentionally omitting and concealing
important, relevant information about their conduct concerning
Mercado from the investigators and, thus, creating a false impression
about what had actually occurred, Veal, Watson and Haynes’s
statements concerning their involvement in the altercation with
Mercado as well as their subsequent meeting at the police department
were false and misleading and constituted “misleading conduct” within
the meaning of § 1512(b)(3), which resulted in their convictions.
2. Camacho
Camacho argues that evidence regarding his ripped shirt and his
presentation of it to police technician Romans for photographing is
61
insufficient to constitute misleading conduct with intent to hinder or
prevent the communication of information to law enforcement
personnel.31 To the contrary, this evidence fits within the proscriptions
of § 1512(b)(3), where applicable “misleading conduct” includes
“knowingly submitting or inviting reliance on a[n] . . . object that is
misleading in a material respect; or knowingly using a trick, scheme, or
device with intent to mislead.” 18 U.S.C. § 1515(a)(3)(D)-(E). The
jurors reasonably could have concluded that Camacho deliberately tore
his shirt after he returned to the police station with the intent to convey
to investigating officers a distorted impression about the nature and
manner of the altercation that resulted in Mercado’s death.
Additionally, the jurors rationally could have determined that Camacho
fabricated an exculpatory explanation about the circumstances that led
to Mercado’s violent death by tearing his shirt.
Camacho asked Romans to photograph his shirt under
circumstances that logically would lead any investigator who received
31
The conduct with which Camacho was charged under the indictment as misleading
under Count II identifies these actions involving the torn shirt and presentation for
photographing as Overt Act S as well as Camacho’s false claim over the police radio that the
butcher knife was still inside Mercado’s residence as Overt Act N. See R1-1-8, 7.
62
the photographs to believe that the condition of the shirt was a direct
result of the altercation with Mercado and, thus, to arrive at erroneous
conclusions about the nature of the incident.32 Jurors reasonably could
have determined that Camacho deliberately tore his shirt to create
exculpatory evidence because of: the undisputed fact that the shirt was
undamaged at the scene after the altercation; the suspect and
surreptitious manner in which the shirt came to be damaged at the
police station; Camacho’s presentation of himself and his shirt to
Romans who typically takes such pictures to document injuries to
officers in “control” situations; the pictures taken of Camacho inside
the lieutenant’s office, which clearly were intended to show that
Camacho’s shirt had been damaged during a fight with Mercado; the
forensic evidence, which contradicts the impression that Camacho
attempted to create of how the shirt was damaged as an item of
evidence pertinent to the control investigation; and the fact that
32
It is irrelevant that Camacho did not expressly ask Romans, or anyone else, to rely on
the shirt and the photographs of it because this evidence inevitably would have been part of the
investigation into Mercado’s death. Similarly, it is irrelevant whether Camacho initiated asking
Romans to photograph his shirt or whether this was standard procedure in the police department
following a “control” situation, as he contends. Either way, he knew that the pictures would be
used to document the incident involving Mercado, and he created false and misleading evidence
by defacing his shirt within the meaning of § 1512(b)(3) and § 1515(a)(3).
63
Camacho, a veteran police officer, knew that any photographs taken of
him following his participation in a control situation would be relied
upon by investigators in their efforts to determine the cause of
Mercado’s death at his residence. Therefore, the jurors logically could
have inferred that Camacho devised altered and misleading physical
evidence, his ripped shirt, which was a critical and falsely exculpatory
component in the investigation of Mercado’s death, and concluded that
he violated § 1512(b)(3).
D. Jury Instructions Regarding Materiality
Veal argues that the district judge improperly instructed the jury
regarding materiality because he informed the jurors that materiality
was a legal question for the court to decide in contradiction of United
States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995), which
reallocated the determination of the materiality of a false statement
under 18 U.S.C. § 100133 from the judge to the jury. We have
33
Under § 1001, construed in Gaudin,
whoever, in any manner within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly and willfully-
(1) falsifies, conceals, or covers up by any trick, scheme, or device
a material fact;
(2) makes any materially false, fictitious, or fraudulent statement
64
extended Gaudin to all cases where materiality is an element of the
offense. See United States v. De Castro, 113 F.3d 176, 178 (11th Cir.
1997). The determination of whether materiality is an element of a
particular crime is a question of law reviewed de novo. See id.For cases on direct appeal at the time that it was decided, such
as this case, Gaudin applies retroactively. See United States v. Fern,
117 F.3d 1298, 1307 (11th Cir. 1997) (citing Griffith v. Kentucky, 479
U.S. 314, 328, 107 S.Ct. 708, 715 (1987)). We review for plain error
when the purported error on appeal is the result of a subsequent
Supreme Court decision and no error was asserted at trial.34 See id.Our review of the record reveals that the materiality definition, which
Veal contests, was discussed at the charge conference and given at
or representation; or
(3) makes or uses any false writing or document knowing the same
to contain any materially false, fictitious, or fraudulent statement
or representation; or
(3) makes or uses any false writing or document knowing the same
to contain any materially false, fictitious, or fraudulent statement
or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.
18 U.S.C. § 1001(a).
34
Plain error review, applicable to alleged Gaudin errors when no objection was made at
trial, consists of an error being both plain and affecting substantial rights. See Fern, 117 F.3d at
1307.
65
trial in the context of the pending perjury counts alleging violation of 18
U.S.C. § 1623, Counts III, IV, VI through IX.35 The defendants were
acquitted on all of these counts, which makes the instructions relative
to the perjury counts irrelevant to the instructions concerning §
1512(b)(3), the only count of conviction.
The only reference to “material” in the district judge’s instructions
concerning § 1512(b)(3) occurred in the definition of “misleading conduct”
from § 1515(a)(3)(B), where the adjective “material” modifies “fact” and
“respect.”36 Veal has presented an unwarranted extrapolation from the
35
Concerning the perjury counts, the district judge instructed:
Now, with regard to “materiality,” the materiality of the matter involved in
the alleged false testimony is not a matter with which you are concerned, but,
rather, is a question for the Court to decide. You are instructed that the questions
asked of a defendant, as alleged in each of the respective counts, constitute[]
material matters in the court proceedings referred to in the Indictment.
R43-30.
36
With regard to “misleading conduct” within the meaning of § 1512(b)(3), the district
judge instructed the jury as follows:
[F]or the purposes of this offense charged in count two, you are instructed that the
term “misleading conduct” means the following: A, knowingly making a false
statement, or, B, knowingly . . . intentionally omitting information from a
statement and thereby causing a portion of such statement to be misleading, or
intentionally concealing a material fact, and thereby creating a false impression
by such statement, or, C, with intent to mislead, knowingly submitting or inviting
reliance on a writing or recording that is false, forged, altered, or otherwise
lacking in authenticity, or, D, with intent to mislead, knowingly submitting or
inviting reliance on a sample, specimen, map, photograph, boundary mark or
66
district judge’s “materiality” instruction relating to the perjury counts under §
1623 and misrepresented that instruction as being applicable to the §
1512(b)(3) instruction, which references “material fact” and “material
respect.”37 We recognize the similarity between a violation of § 1001 for
false statements in a matter within the jurisdiction of a federal department or
agency and a violation of § 1512(b)(3) for misleading conduct that obstructs
a federal law enforcement officer or judge from knowing the true facts
relating to the commission or possible commission of a federal crime. Cf.
United States v. Klais, 68 F.3d 1282, 1283 (11th Cir. 1995) (per curiam)
(holding that Gaudin does not apply to 18 U.S.C. § 922(a)(6), which uses
“‘material’ in an entirely different manner” from § 1001, and that the district
other object that is misleading in a material respect, or, finally, E, knowingly
using a trick, scheme, or device with intent to mislead.
R43-27 (emphasis added); see 18 U.S.C. § 1515(a)(3)(B) & (D) (defining “misleading conduct”
for purposes of § 1512 inter alia as “intentionally concealing a material fact” and “with intent to
mislead, knowingly submitting or inviting reliance on . . . [an] object that is misleading in a
material respect” (emphasis added)).
37
Veal incorrectly represents that “[t]he court followed the definition of misleading
conduct immediately with the instruction that materiality is a matter for the court to decide and
not a question for the jury.” Appellant Veal’s Brief at 33 (emphasis added). While the
instruction defining misleading conduct occurs within the district judge’s instructions for Count
II concerning § 1512(b)(3), the materiality instruction occurs not immediately thereafter, but
subsequently, within the judge’s instructions for Counts III, IV, VI-IX regarding § 1623. The
two instructions are unrelated and not intertwined such that they would have been confusing to
the jurors.
67
judge properly did not submit the question of materiality to the jury), cert.
denied, ___ U.S.___, 117 S.Ct. 94 (1996). Nevertheless, Veal’s Gaudin
argument fails because, following the district judge’s instructions for Count
II, to which there was no objection at the charge conference or at trial, the
jury and not the district judge made the decision regarding whether the
officers’ actions constituted “misleading conduct” under § 1512(b)(3).
Accordingly, Veal’s Gaudin challenge to the § 1512(b)(3) jury instruction
regarding materiality is meritless.
III. CONCLUSION
Veal, Watson, Haynes, and Camacho, experienced narcotics
police officers, have presented various issues in an effort to overturn
their convictions under § 1512(b)(3) for engaging in misleading or
obstructive conduct relating to the federal investigation of the death of
Mercado, a drug dealer. Veal, Watson and Haynes contest the
admission in the obstruction case of their statements suppressed by
the same district judge in their previous trial for violating Mercado’s civil
rights. All challenge the district judge’s interpretation and application
of § 1512(b)(3) as well as the sufficiency of the evidence to support
68
their convictions. Veal argues that Gaudin precludes the district
judge’s jury instructions on materiality. For the reasons explained
herein, we AFFIRM their convictions.
69