United States v. Church

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4380
TERRY LEE CHURCH,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-99-222)
Argued: April 6, 2001
Decided: May 31, 2001
Before WIDENER and WILKINS, Circuit Judges, and
Patrick Michael DUFFY, United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kenneth Eugene Webb, Jr., BOWLES, RICE,
MCDAVID, GRAFF & LOVE, Charleston, West Virginia, for Appel-
lant. Susan Marie Arnold, Assistant United States Attorney, Charles-
ton, West Virginia, for Appellee. ON BRIEF: Charles M. Love, III,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
2 UNITED STATES v. CHURCH
Charleston, West Virginia; John A. Michelich, Senior Trial Attorney,
Criminal Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Terry Lee Church appeals from her conviction for
obstructing a bank investigation under 18 U.S.C. § 1517 and from the
sentence imposed on her by the district court.1 For the reasons set
forth below, we affirm.
I.
On June 21, 1999, the Office of the Comptroller of the Currency
and the Federal Deposit Insurance Corporation began an investigation
of the First National Bank of Keystone ("Bank") in Keystone, West
Virginia. Church was the Chief Operating Officer and Senior Vice
President of the Bank during this investigation. Church was in charge
of the daily operations of the Bank. On September 2, 1999, the FDIC
declared the bank insolvent and relieved Church of her responsibili-
ties at the Bank.
During the investigation, Church had directed bank employees to
alter records sought by bank investigators, provide some documents
while concealing others, and misrepresent to bank investigators cer-
tain bank transactions. Church also had ordered employees from her
1
Church’s co-defendant, Michael H. Graham, was convicted in the
same trial and sentenced. He filed a consolidated appeal with Church.
However, on November 20, 2000, we dismissed Graham’s appeal on his
motion under Rule 42(b) of the Federal Rules of Appellate Procedure.
UNITED STATES v. CHURCH 3
hardware store and her farm to assist bank employees in removing
and burying bank records from the bank and the storage in the school-
house on August 12 and 15, 1999. The bank investigators had
requested several types of bank records that were not provided or
were incomplete. Some of the requested documents were later seized
from Church’s property.
Following an excavation by federal investigators of bank records
and documents from Church’s farm near Keystone, a warrant was
issued for Church’s arrest on October 14, 1999. Church was charged
with one count of conspiracy to obstruct a bank investigation by fed-
eral agencies under 18 U.S.C. § 1517 and with two counts of obstruct-
ing a bank investigation on specific dates. The grand jury returned a
true bill on the three-count indictment against Church.
II.
Church first appeals from her conviction on the basis that 18
U.S.C. § 15172 is unconstitutionally vague. We disagree.
A.
We review de novo any ruling on the constitutionality of federal
statutes. A fundamental requirement of due process is that penal stat-
utes be written to put people of common intelligence on notice of the
particular types of conduct that the statute prohibits. See, e.g., United
States v. Lanier, 520 U.S. 259, 267 (1997). "‘The . . . principle is that
no [person] shall be held criminally responsible for conduct which
[that person] could not reasonably understand to be proscribed.’" Id.
at 265 (quoting Bouie v. City of Columbia, 378 U.S. 347, 351 (1964)
(internal quotation omitted)). The Supreme Court has noted "the
2
The statute reads in whole:
Whoever corruptly obstructs or attempts to obstruct any exami-
nation of a financial institution by an agency of the United States
with jurisdiction to conduct an examination of such financial
institution shall be fined under this title, imprisoned not more
than 5 years, or both.
18 U.S.C. § 1517.
4 UNITED STATES v. CHURCH
vagueness doctrine bars enforcement of ‘a statute which either forbids
or requires the doing of an act in terms so vague that [people] of com-
mon intelligence must necessarily guess at its meaning and differ as
to its application.’" Id. at 266 (quoting Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926)). However, criminal statutes are not
unconstitutional simply because the language may contribute to inter-
pretations in which reasonable minds may differ on particular applica-
tions, and the statute is sufficiently definite if "the common-sense
meaning" is clear. United States v. Powell, 423 U.S. 87, 93 (1975).
Church’s challenge to section 1517 is reviewed only as the statute
was applied to her. See Schleifer v. City of Charlottesville, 159 F.3d
843, 853 (4th Cir. 1998). "[V]agueness challenges to statutes which
do not involve First Amendment freedoms must be examined in the
light of the facts of the case at hand." United States v. Mazurie, 419
U.S. 544, 550 (1975); Parker v. Levy, 417 U.S. 733, 757 (1974). The
Supreme Court has noted "that the approach to ‘vagueness’ governing
a case like this is different from that followed in cases arising under
the First Amendment. There we are concerned with the vagueness of
the statute ‘on its face’ because such vagueness may in itself deter
constitutionally protected and socially desirable conduct." United
States v. National Dairy Products Corp., 372 U.S. 29, 31-32, 36
(1963).
Church argues that section 1517 as applied to her was unconstitu-
tionally vague. No appellate court has reported a case addressing the
constitutionality of section 1517. Section 1517 is one of the federal
obstruction-of-justice statutes. See 18 U.S.C. §§ 1501-1518; United
States v. Aguilar, 515 U.S. 593 (1995) (setting forth specific elements
required to satisfy 18 U.S.C. § 1503, which is the most broadly
worded obstruction-of-justice statute).
In Aguilar, the Supreme Court reversed a conviction for obstruc-
tion of justice under section 15033 as applied in that case. The govern-
3
Section 1503(a) states in relevant part:
Whoever . . . corruptly or by threats or force, or by any threaten-
ing letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administra-
tion of justice, shall be punished as provided in subsection (b).
...
UNITED STATES v. CHURCH 5
ment’s evidence was insufficient to show that the defendant’s false
statements to FBI agents were intended to obstruct a judicial proceed-
ing. In fact, the government in Aguilar did not prove that the defen-
dant knew his false statements to the FBI would be communicated to
the grand jury.
The Supreme Court held that in order to convict under section
1503, the government need not demonstrate that justice was in fact
obstructed but must prove only that "the endeavor [has] the natural
and probable effect of interfering with the due administration of jus-
tice." United States v. Aguilar, 515 U.S. 593, 599 (1995) (internal
quotes omitted). In addition, the substance of the defendant’s obstruc-
tion need not be material to the bank investigation. Here, in contrast
to Aguilar, the government proved Church instructed employees to
fraudulently hide, destroy, and manufacture bank records for the pur-
pose of obstructing the investigation. The Government also proved
Church directed her actions at the investigation.
The vagueness "doctrine incorporates notions of fair notice or
warning. Moreover, it requires legislatures to set reasonably clear
guidelines for law enforcement officials and triers of fact in order to
prevent ‘arbitrary and discriminatory enforcement.’" Parker v. Levy,
417 U.S. 733, 752 (1974) (quoting Smith v. Goguen, 415 U.S. 566,
572-73 (1974)). In analyzing a statute’s vagueness, the court should
assume the statute reads as the courts have previously interpreted it
and that it is properly applied to the appellant. Then, the reviewing
court should determine in that light whether the statute is too vague
and indefinite. See Wainwright v. Stone, 414 U.S. 21, 22-23 (1973).
Section 1517 is unambiguous in the light imposed by Wainwright.
The terms and judicial constructions of a statute may make it apply
unquestionably to certain activities, and yet its application to other
activities may remain uncertain due to the absence of a stated stan-
dard for inclusion or exclusion of activities from its scope. Smith v.
Goguen, 415 U.S. at 577-578. We look only for a violation of consti-
tutional protections, and the statutory language is not vague in pro-
scribing her corrupt obstruction of the bank investigation which the
Government proved at trial.
Church relies heavily on United States v. Poindexter, 951 F.2d 369,
379 (D.C. Cir. 1991), wherein the District of Columbia Circuit Court
6 UNITED STATES v. CHURCH
found that the Government could not constitutionally convict
Poindexter under section 15054 for his own independent lies to Con-
gress. In Poindexter, the court observed that the term "corruptly," as
used in section 1505, mandates a transitive interpretation as opposed
to an intransitive interpretation. Id. at 377-86. Poindexter was only
charged with lying to Congress, a clearly intransitive act which is not
covered by the statute under the court’s construction of that statute.
Thus, the court found section 1505 was vague as it was applied to
Poindexter’s actions in that case, but the court expressly approved an
interpretation of section 1505 that outlawed conduct "‘corrupting’
another person by influencing him to violate his legal duty."
Poindexter, 951 F.2d at 379.
The D.C. Circuit reviewed its decision in Poindexter in light of
another obstruction-of-justice statute, 18 U.S.C. § 1512,5 and found
the same language was not unconstitutionally vague under different
factual circumstances:
While we agree that the two statutes are sufficiently similar
to support a "transitive" reading of the word "corruptly" in
§ 1512(b), we disagree with Morrison’s claim that his con-
duct could not still fall under the statutory ban. . . . Morrison
4
Section 1505 states in the relevant part:
Whoever 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 and proper
administration of the law under which any pending proceeding
is being had before any department or agency of the United
States . . . .
5
Section 1512(b) states in relevant part:
Whoever . . . 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; [or]
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document,
or other object, from an official proceeding . . . .
UNITED STATES v. CHURCH 7
tried to "corrupt" Doris Holmes by exhorting her to violate
her legal duty to testify truthfully in court.
United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996); see
also United States v. Shotts, 145 F.3d 1289, 1301 & n.24 (11th Cir.
1998).
We believe section 1517 is not vague as applied in this case. The
legislative history of "corruptly" in section 1517 states:
The requirement that the obstruction, or attempted
obstruction, be done corruptly means that the conduct must
be engaged in voluntarily and intentionally, and with the bad
purpose of accomplishing either an unlawful end or result,
or a lawful end or result by some unlawful method or
means. The motive to act corruptly is ordinarily a hope or
expectation of either financial gain or other benefit to one’s
self, or some aid or profit or benefit to another.
H.R. Rep. No. 681(I), 101st Cong., 2nd Sess., 174 n.5, reprinted in
U.S.C.C.A.N. 6472, 6580. Church’s actions met this requirement that
the obstruction was done "corruptly". The record shows that Church
enlisted Graham and other employees to lie to the Government
agents, to falsify documents, and to assist in the transportation and
burial of bank records sought in the investigation. Such conduct falls
squarely within the common-sense meaning of section 1517. There-
fore, Church’s conviction cannot be reversed on the grounds that the
statute is unconstitutionally vague as applied to Church’s conduct. See
also United States v. Kelley, 36 F.3d 1118, 1127-28 (D.C. Cir. 1994).
The evidence showed that Church not only failed to comply with
the subpoena and represented that she had complied with all requests,
but it also showed she directed employees to alter records sought by
bank investigators and conceal documents. The altered and concealed
records were unmistakably relevant to the grand jury’s investigation
and were probative of whether the bank was insolvent. By withhold-
ing those documents, Church materially obstructed the grand jury’s
investigation. "[T]he destruction or concealment of documents can
fall within the prohibition" of section 1503 when done with the requi-
site corrupt motive." United States v. Rasheed, 663 F.2d 843, 852 (9th
8 UNITED STATES v. CHURCH
Cir. 1981). In Rasheed, that corrupt motive was supplied when the act
is done "with the purpose of obstructing justice." Id. The evidence in
this case was more than sufficient to sustain a verdict that Church
deliberately concealed material portions of the subpoenaed documents
with the corrupt motive of obstructing the bank investigation. There-
fore, her challenge to the conviction under section 1517 must fail.
Church also argues that the statute as applied to her may now be
applied to almost any act that has the effect of obstructing bank audits
by the FDIC. Based on this alleged overreach of the statute, Church
urges this Court to find "corruptly" in the statute is void for vague-
ness. "Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a statute may con-
stitutionally be applied will not be heard to challenge that statute on
the ground that it may conceivably be applied unconstitutionally to
others, in other situations not before the Court." Broadrick v. Okla-
homa, 413 U.S. 601, 610 (1973). Under the statute, Church’s conduct
clearly may be prosecuted. In this appeal, we are only concerned
whether Church’s constitutional protections were violated by the stat-
ute’s application to her. Because Church was fairly on notice that her
conduct was prohibited by the statute and evidenced the requisite cor-
rupt intent, this Court finds the statute was not unconstitutionally
vague. Whatever limits may be placed upon the scope of section 1517
by the rules of statutory construction or the vagueness doctrine of
constitutional law, those limits do not preclude a conviction in this
case.
B.
We find Church’s remaining grounds on appeal meritless. First, the
indictment is sufficient because it contained the elements of the
offense intended to be charged and sufficiently informed Church of
the crimes with which the government charged her so she could ade-
quately prepare a defense and could plead the judgment as a bar to
any subsequent prosecution for the same offense. United States v.
Debrow, 346 U.S. 374 (1953); Hagner v. United States, 285 U.S. 427(1932); United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994);
United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967). Second, no
appellate court has recognized or implemented a "presumption of cor-
UNITED STATES v. CHURCH 9
6
ruptness" for any obstruction-of-justice statute, and the district court
properly instructed the jury without applying a "presumption of cor-
ruptness." Third, "[w]here, as here, a motion for judgment of acquittal
is based on insufficiency of the evidence, the conviction must be sus-
tained if the evidence, when viewed in the light most favorable to the
Government, is sufficient for any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt." United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). The record below
is replete with evidence, direct and circumstantial, that supports the
deferential standard of reviewing whether Church corruptly
obstructed or attempted to obstruct the bank investigation. Fourth, the
evidence about which Church complains does not present any abuse
of discretion which would warrant reversing the district court’s rul-
ings. See Scales v. United States, 367 U.S. 203, 256 (1961); United
States v. Obi, 239 F.3d 662, 667 (4th Cir. 2001). Fifth and for
Church’s sentencing only, the district court explicitly found by a pre-
ponderance of the evidence that Church "willfully gave material false
testimony under oath on the witness stand here in this courtroom" and
"substantial[ly] interfered with the administration of justice," and the
record supports the district court’s findings. Church’s sentencing
enhancement for obstruction of justice is not error. See United States
v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
CONCLUSION
For the reasons stated herein, we affirm Church’s conviction and
sentence.
AFFIRMED
6
The term "presumption of corruptness" appears nowhere on computer
databases of federal cases and is apparently contrived by Church in this
appeal.