United States v. Joseph Fischer

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2022 Decided April 7, 2023
No. 22-3038
UNITED STATES OF AMERICA,
APPELLANT
v.
JOSEPH W. FISCHER,
APPELLEE
Consolidated with 22-3039, 22-3041
Appeals from the United States District Court
for the District of Columbia
(No. 1:21-cr-00234-1)
(No. 1:21-cr-00119-1)
James I. Pearce, Attorney, Capitol Siege Section, U.S.
Department of Justice, argued the cause for appellant. With
him on the brief was John Crabb, Jr., Chief, Capitol Siege
Section.
2
Nicholas D. Smith argued the cause for appellees. With
him on the brief were Frederick W. Ulrich, Assistant Federal
Public Defender, and F. Clinton Broden. A. J. Kramer, Federal
Public Defender, and Ronald A. Krauss, Assistant Federal
Public Defender, entered appearances.
Before: KATSAS, WALKER and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge PAN, with
whom Circuit Judge WALKER joins except as to Section I.C.1
and footnote 8.
Opinion concurring in part and concurring in the
judgment filed by Circuit Judge WALKER.
Dissenting opinion filed by Circuit Judge KATSAS.
PAN, Circuit Judge: As Congress convened on January 6,
2021, to certify the results of the 2020 presidential election in
favor of Joseph R. Biden, Jr., thousands of supporters of the
losing candidate, Donald J. Trump, converged on the United
States Capitol to disrupt the proceedings. The Trump
supporters swarmed the building, overwhelming law
enforcement officers who attempted to stop them. The chaos
wrought by the mob forced members of Congress to stop the
certification and flee for safety. Congress was not able to
resume its work for six hours. The question raised in this case
is whether individuals who allegedly assaulted law
enforcement officers while participating in the Capitol riot can
be charged with corruptly obstructing, influencing, or
impeding an official proceeding, in violation of 18 U.S.C.
§ 1512(c)(2). The district court held that the statute does not
apply to assaultive conduct, committed in furtherance of an
attempt to stop Congress from performing a constitutionally
required duty. We disagree and reverse.
3
BACKGROUND
Appellees Joseph Fischer, Edward Lang, and Garret Miller
were charged by indictment in separate cases with various
offenses arising from their alleged participation in the Capitol
riot on January 6, 2021. Although we draw from the criminal
complaints and pre-trial briefing to describe their alleged
conduct, we consider only the indictments to determine the
sufficiency of any charge.
Fischer allegedly belonged to the mob that forced
Congress to stop its certification process. 1 On January 6, 2021,
he encouraged rioters to “charge” and “hold the line,” had a
“physical encounter” with at least one law enforcement officer,
and participated in pushing the police. Fischer Crim. Compl.,
Appellant’s Appendix (“App.”) 423–27. Before January 6, he
allegedly sent text messages to acquaintances, stating: “If
Trump don’t get in we better get to war”; “Take democratic
[C]ongress to the gallows. . . . Can’t vote if they can’t breathe
. . . lol”; and “I might need you to post my bail. . . . It might
get violent. . . . They should storm the capital [sic] and drag all
the democrates [sic] into the street and have a mob trial.” Gov’t
Opp’n to Mot. to Clarify and Modify Conditions of Release,
App. 433–34. Fischer’s seven-count indictment charges him
with assaulting both Capitol Police and MPD officers. Fischer
Indictment, App. 444.
1
Appellees argue that Fischer could not have obstructed the
Electoral College vote certification because he arrived at the Capitol
after Congress recessed. Although the nature and significance of
Fischer’s conduct are factual issues to be addressed at trial, the
government’s allegations sufficiently support a theory that Fischer
impeded a Congressional proceeding that did not resume for six
hours.
4
Lang, as a member of the mob that forced Congress to stop
its certification procedure, allegedly fought against police
officers in the Capitol for more than two hours, repeatedly
striking officers with a bat and brandishing a stolen police
shield. His 13-count indictment alleges that he assaulted six
Metropolitan Police Department (“MPD”) officers, caused
bodily injury to one of them, and engaged in disorderly conduct
and physical violence with a bat and shield in a restricted area
of the Capitol. See Lang Indictment, App. 52–57.
Miller allegedly traveled to the District of Columbia “for
this [T]rump shit,” bringing a grappling hook, rope, bullet-
proof vest, helmets, and a mouthguard: He believed that “crazy
shit” was going to happen and a “civil war could start.” Am.
Crim. Compl., App. 75. In his 12-count indictment, the
government alleges that Miller was part of the mob that forced
its way into the Capitol and stopped Congress’s certification
process; and that he pushed against U.S. Capitol Police officers
to gain entrance to the Rotunda. Shortly after the riot, Miller
allegedly took to Twitter and Facebook to advocate the
assassination of a U.S. Congresswoman, and to declare that a
Capitol Police officer deserved to die, threatening to “hug his
neck with a nice rope.” Miller Indictment, App. 86–87.
The government charged all three appellees with, among
other things, the felony offense of Assaulting, Resisting, or
Impeding Certain Officers, in violation of 18 U.S.C.
§ 111(a)(1); and the misdemeanor offenses of Disorderly
Conduct in a Capitol Building, in violation of 18 U.S.C.
§ 5104(e)(2)(D), and Disorderly and Disruptive Conduct in a
Restricted Building or Grounds, in violation of 18 U.S.C.
§ 1752(a)(2) and (b)(l)(A). The felony assault count alleges
that each appellee “did forcibly assault, resist, oppose, impede,
intimidate, and interfere with[] an officer and employee of the
United States . . . and any person assisting such an officer and
5
employee . . . and . . . the acts in violation of this section
involve the intent to commit another felony.” Miller
Indictment, App. 86; see also Fischer Indictment, App. 444
(also alleging that “the acts in violation of this section involve
physical contact with the victim”); Lang Indictment, App. 52
(same). The disorderly conduct charges specify that each
appellee “willfully and knowingly engaged in disorderly and
disruptive conduct in any of the Capitol Buildings with the
intent to impede, disrupt, and disturb the orderly conduct of a
session of Congress”; and “did knowingly, and with intent to
impede and disrupt the orderly conduct of Government
business and official functions, engage in disorderly and
disruptive conduct . . . within the United States Capitol . . . so
that such conduct did in fact impede and disrupt the orderly
conduct of Government business and official functions.”
Miller Indictment, App. 87–88; see also Fischer Indictment,
App. 445 (alleging similar charges); Lang Indictment, App.
55–57 (same). Appellees do not challenge the sufficiency of
the counts that charge them with felony assault and disorderly
conduct.
The government also charged each appellee with one
count of Obstruction of an Official Proceeding under 18 U.S.C.
§ 1512(c)(2), as follows:
On or about January 6, 2021, within the District of
Columbia and elsewhere, [Fischer, Lang, and Miller]
attempted to, and did, corruptly obstruct, influence,
and impede an official proceeding, that is, a
proceeding before Congress, specifically Congress’s
certification of the Electoral College vote as set out in
the Twelfth Amendment of the Constitution of the
United States and 3 U.S.C. §§ 15–18.
6
Lang Indictment, App. 55; Miller Indictment, App. 85-86;
Fischer Indictment, App. 444. Each appellee moved to dismiss
the § 1512(c)(2) count, asserting that the statute did not
prohibit his alleged conduct on January 6, 2021. Section
1512(c) provides in full:
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a
record, document, or other object, or attempts
to do so, with the intent to impair the object’s
integrity or availability for use in an official
proceeding; or
(2) otherwise obstructs, influences, or impedes
any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more
than 20 years, or both.
18 U.S.C. § 1512(c).
The district court granted each appellee’s motion to
dismiss. After carefully reviewing the text and structure of the
statute, the district court concluded that § 1512(c) is ambiguous
with respect to how subsection (c)(2) relates to subsection
(c)(1). Although subsection (c)(1) concerns obstructive
conduct involving “a record, document, or other object,” and
the words of subsection (c)(2) more generally address
“obstruct[ing], influenc[ing], or imped[ing] any official
proceeding, or attempt[ing] to do so,” the district court focused
on the meaning of the word “otherwise” that connects the two
provisions. United States v. Miller, 589 F. Supp. 3d 60, 67–69
(D.D.C. 2022). Relying on its understanding of the Supreme
Court’s holding in Begay v. United States, 553 U.S. 137 (2008),
as well as canons of statutory construction, statutory and
legislative history, and the principles of restraint and lenity, the
district court determined that subsection (c)(2) “must be
7
interpreted as limited by subsection (c)(1).” Miller, 589 F.
Supp. 3d at 78. That led the district court to hold that
subsection (c)(2) “requires that the defendant have taken some
action with respect to a document, record, or other object in
order to corruptly obstruct, impede or influence an official
proceeding.” Id. Because appellees’ indictments do not allege
that they violated § 1512(c)(2) by committing obstructive acts
related to “a document, record, or other object,” the district
court dismissed the § 1512(c)(2) counts. Id. at 79; see also
United States v. Fischer, No. 1:21-cr-234 (D.D.C. March 15,
2022) (order relying on Miller to dismiss § 1512(c)(2) count);
United States v. Lang, No. 1:21-cr-53 (D.D.C. June 7, 2022)
(minute order relying on Miller to dismiss § 1512(c)(2) count).
The government filed a motion to reconsider in Miller’s case,
which the district court denied. United States v. Miller, No.
1:21-cr-119, 2022 WL 1718984 (May 27, 2022). This
consolidated appeal followed.
STANDARD OF REVIEW
A defendant in a criminal case may move to dismiss an
indictment before trial for “failure to state an offense,” Fed. R.
Crim. P. 12(b)(3)(B)(v), including because the statute under
which he is charged does not apply to his alleged conduct.
Hamling v. United States, 418 U.S. 87, 117 (1974) (explaining
that an indictment must “set forth all the elements necessary to
constitute the offense intended to be punished” (citation and
internal quotation omitted)); accord United States v.
Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018). At the
motion-to-dismiss stage, the question is whether the indictment
states “essential facts constituting the offense charged . . . .”
Fed. R. Crim. P. 7(c)(1); see also United States v. Ballestas,
795 F.3d 138, 149 (D.C. Cir. 2015). “Because a court’s ‘use
of its supervisory power to dismiss an indictment . . . directly
encroaches upon the fundamental role of the grand jury,’
8
dismissal is granted only in unusual circumstances.” Ballestas,
795 F.3d at 148 (cleaned up) (quoting Whitehouse v. U.S. Dist.
Ct., 53 F.3d 1349, 1360 (1st Cir. 1995)). We review the district
court’s interpretation of § 1512(c)(2) — a question of law —
de novo. See United States v. Verrusio, 762 F.3d 1, 13 (D.C.
Cir. 2014).
ANALYSIS
The government asserts that the words “corruptly . . .
obstructs, influences, and impedes any official proceeding” in
18 U.S.C. § 1512(c)(2) have a broad meaning that encompasses
all forms of obstructive conduct, including appellees’ allegedly
violent efforts to stop Congress from certifying the results of
the 2020 presidential election. Thus, the government contends,
the district court erred when it adopted an unduly narrow
interpretation of § 1512(c)(2) that limits the statute’s
application to obstructive conduct “with respect to a document,
record, or other object.” Gov’t’s Br. 13 (quoting Miller, 589 F.
Supp. 3d at 78). For their part, appellees halfheartedly defend
the trial court’s interpretation, but more vigorously advance a
different argument: that § 1512(c)(2) prohibits obstructive acts
related not just to “a record, document, or other object,” but
also to all acts of general “evidence impairment.” Appellees’
Br. 2, 15. Appellees argue that under either the district court’s
document-focused reading of the statute or their own evidence-
impairment theory, appellees’ conduct on January 6, 2021, is
beyond the reach of § 1512(c)(2). Faced with these three
competing interpretations of the statute, we conclude that the
government has the best of this argument.
I. Interpretation of § 1512(c)(2)
When interpreting a statute, “we begin by analyzing the
statutory language, ‘assuming that the ordinary meaning of that
language accurately expresses the legislative purpose.’” Hardt
9
v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010)
(cleaned up) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 175 (2009)). If a statute’s language is clear, then that
language controls. The Supreme Court has explained:
[C]anons of construction are no more than rules of
thumb that help courts determine the meaning of
legislation, and in interpreting a statute a court should
always turn first to one, cardinal canon before all
others. We have stated time and again that courts
must presume that a legislature says in a statute what
it means and means in a statute what it says there.
When the words of a statute are unambiguous, then,
this first canon is also the last: judicial inquiry is
complete.
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)
(citations and internal quotation marks omitted); accord
Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (“If the words
of a statute are unambiguous, this first step of the interpretive
inquiry is our last.”). Therefore, “[w]e must enforce plain and
unambiguous statutory language according to its terms.”
Hardt, 560 U.S. at 251.
A. Text and Structure
We start by reiterating and examining the text of
§ 1512(c):
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a
record, document, or other object, or attempts
to do so, with the intent to impair the object’s
10
integrity or availability for use in an official
proceeding; or
(2) otherwise obstructs, influences, or impedes
any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more
than 20 years, or both.
18 U.S.C. § 1512.
In our view, the meaning of the statute is unambiguous.
Subsection (c)(1) contains a specific prohibition against
“corruptly” tampering with “a record, document, or other
object” to impair or prevent its use in an official proceeding,
while subsection (c)(2) proscribes “corrupt[]” conduct that
“otherwise obstructs, influences, or impedes any official
proceeding, or attempts to do so . . . .” Under the most natural
reading of the statute, § 1512(c)(2) applies to all forms of
corrupt obstruction of an official proceeding, other than the
conduct that is already covered by § 1512(c)(1). This reading
incorporates the commonplace, dictionary meaning of the word
“otherwise”: “in a different manner.” See Otherwise, Oxford
English Dictionary (3d ed. 2004) (defining “otherwise” as “[i]n
another way or ways; in a different manner; by other means; in
other words; differently”); Otherwise, Black’s Law Dictionary
(6th ed. 1990) (defining “otherwise” as “[i]n a different
manner; in another way, or in other ways”); see also Sandifer
v. U.S. Steel Corp., 571 U.S. 220, 227–28 (2014) (using
contemporary dictionaries to ascertain ordinary, contemporary,
common meaning). Giving the text “its ordinary or natural
meaning,” FDIC v. Meyer, 510 U.S. 471, 476 (1994), the
statute essentially says, “Whoever corruptly (1) tampers with a
document, record, or object to interfere with its use in an
official proceeding; or (2) in a different manner obstructs,
influences, or impedes any official proceeding, shall be fined
or imprisoned.” See also Wis. Cent. Ltd. v. United States, 138
11
S. Ct. 2067, 2074 (2018) (“[I]t’s a fundamental canon of
statutory construction that words generally should be
interpreted as taking their ordinary, contemporary, common
meaning at the time Congress enacted the statute.” (cleaned up)
(quoting Perrin v. United States, 444 U.S. 37, 42 (1979))).
That natural, broad reading of the statute is consistent with
prior interpretations of the words it uses and the structure it
employs. The terms “obstruct,” “influence,” and “impede” can
be found in several statutes pertaining to criminal obstruction
of justice, such as 18 U.S.C. § 1503, which targets “corruptly
. . . influenc[ing], obstruct[ing], or imped[ing] the due
administration of justice”; and § 1505, which addresses
“corruptly . . . influenc[ing], obstruct[ing], or imped[ing]” the
due and proper administration of law” in certain proceedings
or investigations. The parties do not dispute the meaning of
those words or their typically expansive scope. See United
States v. Aguilar, 515 U.S. 593, 598 (1995) (“[T]he ‘Omnibus
Clause’ [of § 1503] serves as a catchall, prohibiting persons
from endeavoring to influence, obstruct, or impede the due
administration of justice. The latter clause, it can be seen, is
far more general in scope than the earlier clauses of the
statute.”); United States v. Griffin, 589 F.2d 200, 206–07 (5th
Cir. 1979) (“The omnibus clause of [§ 1503] clearly states that
it punishes all endeavors to obstruct the due administration of
justice.”); United States v. Alo, 439 F.2d 751, 754 (2d Cir.
1971) (rejecting litigant’s attempt “to escape the plain meaning
of the broad language of § 1505”).
Moreover, the word “otherwise” has been given its
common meaning of “in a different manner” when used in
similarly structured statutes. Section 1512(c) contains an
initial subsection announcing a particular requirement,
followed by a separately numbered subsection that begins with
the word “otherwise” and introduces a broader requirement.
12
The latter subsection is a “catch-all” 2 that “cover[s] otherwise
obstructive behavior that might not constitute a more specific
offense” involving documents, records, or objects under
§ 1512(c)(1). United States v. Petruk, 781 F.3d 438, 447 (8th
Cir. 2015) (internal quotation marks omitted) (quoting United
States v. Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014)). Such
“catch-all” structures are not uncommon. See, e.g., 18 U.S.C.
§ 1952(a)(3); 28 U.S.C. § 2466(a)(1)(C). In such statutes, “the
use of the introductory word ‘otherwise’ indicates that the
evasion referred to in the [catch-all provision] reaches beyond
the[] specific examples [in the preceding sections] to myriad
means that human ingenuity might devise . . . .” Collazos v.
United States, 368 F.3d 190, 200 (2d Cir. 2004) (discussing 28
U.S.C. § 2466(a)(1)(C)); see also United States v. O’Hara, 143
F. Supp. 2d 1039, 1042 (E.D. Wis. 2001) (“The use of
‘otherwise’ in [18 U.S.C.] § [1952](a)(3) indicates that in
Congress’s view, intending to commit a crime of violence
under § (a)(2) is simply one way in which an offender can
intend to promote or facilitate unlawful activity. What
distinguishes violations of §§ (a)(2) and (a)(3) is . . . whether
the offender intends to promote or facilitate unlawful activity
by committing a crime of violence (which would violate
§ (a)(2)) or by some other means (which would violate
§ (a)(3)).”).
Thus, the broad interpretation of the statute —
encompassing all forms of obstructive acts — is unambiguous
and natural, as confirmed by the “ordinary, contemporary,
2
Courts also have described § 1512(c)(2) as a “residual” or
“omnibus” clause. See, e.g., United States v. Gillespie, No. 1:22-cr-
60, 2022 WL 17262218, at *4 (D.D.C. Nov. 29, 2022) (describing
§ 1512(c)(2) as a “residual clause”); United States v. Hutcherson,
No. 6:05-cr-39, 2006 WL 1875955, at *3 (W.D. Va. July 5, 2006)
(describing § 1512(c)(2) as an “omnibus clause”). These terms are
functionally similar.
13
common meaning” of the provision’s text and structure.
Perrin, 444 U.S. at 42.
B. Precedents
Not surprisingly, the vast majority of courts interpreting
the statute have adopted the natural, broad reading of
§ 1512(c)(2), applying the statute to all forms of obstructive
conduct that are not covered by subsection (c)(1).
The Seventh and Eighth Circuits have both acknowledged
the expansive ambit of subsection (c)(2). See Petruk, 781 F.3d
at 447 (“[Section] 1512(c)(2) operates as a catch-all to cover
otherwise obstructive behavior that might not constitute a more
specific offense like document destruction, which is listed in
(c)(1).” (citation omitted)); United States v. Burge, 711 F.3d
803, 809 (7th Cir. 2013) (“The expansive language in this
provision operates as a catch-all to cover ‘otherwise’
obstructive behavior that might not fall within the definition of
document destruction.”).
Furthermore, our peer circuits have applied the statute to
reach a wide range of obstructive acts, not just those limited to
tampering with documents or objects. Those courts have found
“otherwise” obstructive conduct under subsection (c)(2) to
include: (1) lying in written responses to civil interrogatory
questions, Burge, 711 F.3d at 808–09; (2) soliciting
information about a grand jury investigation to evade
surveillance, Volpendesto, 746 F.3d at 286; (3) seeking a false
alibi witness, Petruk, 781 F.3d at 444, 447; (4) tipping off the
targets of criminal investigations, United States v. Ahrensfield,
698 F.3d 1310, 1324–25 (10th Cir. 2012); (5) asking third
parties to create fraudulent physical evidence, United States v.
Desposito, 704 F.3d 221, 230–33 (2d Cir. 2013); (6) giving
misleading testimony in a preliminary injunction hearing,
United States v. Jefferson, 751 F.3d 314, 321 (5th Cir. 2014);
14
(7) attempting to orchestrate a grand jury witness’s testimony,
United States v. Mintmire, 507 F.3d 1273, 1290 (11th Cir.
2007); (8) making false statements to a grand jury, United
States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); and (9)
burning an apartment to conceal the bodies of two murder
victims, United States v. Cervantes, No. 16-10508, 2021 WL
2666684, at *6 (9th Cir. June 29, 2021).
To defend a narrower reading of the statute, appellees note
that the above-cited cases involve “evidence impairment,”
Appellees’ Br. 25–26, and insist that “the extension of Section
1512(c)(2) to acts not intended to affect the availability or
integrity of evidence is unprecedented,” id. 16. While the cited
cases happen to address behavior that impaired evidence, none
of them suggests that subsection (c)(2) is limited to such
conduct. Indeed, as discussed above, several of the opinions
affirmatively describe § 1512(c)(2) in capacious terms. See,
e.g., Petruk, 781 F.3d at 446–47; Volpendesto, 746 F.3d at 286.
Moreover, contrary to appellees’ claim, case law does not
uniformly apply the statute to circumstances involving
evidence impairment: The Second Circuit upheld a conviction
under § 1512(c)(2) where the defendant created a forged court
order, which did not impair evidence but deceived the recipient
into withdrawing an application for a writ of mandamus. See
United States v. Reich, 479 F.3d 179, 185–87 (2d Cir. 2007)
(Sotomayor, J.).
Notably, no fewer than fourteen district judges in this
jurisdiction have adopted the broad reading of the statute urged
by the government to uphold the prosecution of defendants
who allegedly participated in the Capitol riot. 3 Although the
3
See Gillespie, 2022 WL 17262218, at *4–5 (Howell, J.); United
States v. Hale-Cusanelli, No. 21-cr-37, 2022 WL 4300000, at *1
(D.D.C. Sept. 19, 2022) (McFadden, J.); United States v. Robertson,
15
opinions of those district judges are not binding on us, the near
unanimity of the rulings is striking, as well as the thorough and
persuasive reasoning in the decisions. See, e.g., McHugh, 2022
WL 1302880; Montgomery, 578 F. Supp. 3d 54; Sandlin, 575
F. Supp. 3d 16. The district judge in the instant case stands
alone in ruling that § 1512(c)(2) cannot reach the conduct of
January 6 defendants. 4
610 F. Supp. 3d 229, 233–35 (D.D.C. 2022) (Cooper, J.); United
States v. Williams, No. 21-cr-618, 2022 WL 2237301, at *17 n.13
(D.D.C. June 22, 2022) (Berman Jackson, J.); United States v.
Fitzsimons, 605 F. Supp. 3d 132, 137, 142–150 (D.D.C. 2022)
(Contreras, J.); United States v. Bingert, 605 F. Supp. 3d 111, 123–
28 (D.D.C. 2022) (Lamberth, J.); United States v. McHugh, No. 21-
cr-453, 2022 WL 1302880, at *2–12 (D.D.C. May 2, 2022) (Bates,
J.); United States v. Puma, 596 F. Supp. 3d 90, 107–08, 107 n.4
(D.D.C. 2022) (Friedman, J.); United States v. Grider, 585 F. Supp.
3d 21, 29–31 (D.D.C. 2022) (Kollar-Kotelly, J.); United States v.
Nordean, 579 F. Supp. 3d 28, 43–46 (D.D.C. 2021) (Kelly, J.);
United States v. Montgomery, 578 F. Supp. 3d 54, 69–79 (D.D.C.
2021) (Moss, J.); United States v. Mostofsky, 579 F. Supp. 3d 9, 24–
26 (D.D.C. 2021) (Boasberg, J.); United States v. Caldwell, 581 F.
Supp. 3d 1, 20–33 (D.D.C. 2021) (Mehta, J.); United States v.
Sandlin, 575 F. Supp. 3d 16, 24–28 (D.D.C. 2021) (Friedrich, J.).
4
The only cases we are aware of that align with the district
court’s narrowed interpretation are United States v. Singleton, No.
H-06-80, 2006 WL 1984467, at *3 (S.D. Tex. July 14, 2006) (“[T]o
violate § 1512(c)(2), the charged conduct must have some reasonable
nexus to a record, document or tangible object.”); and United States
v. Hutcherson, No. 605-cr-39, 2006 WL 270019, at *2 (W.D. Va.
Feb. 3, 2006) (“Section 1512(c)(1) lists specific conduct that is
prohibited under this subsection; while § 1512(c)(2) is intended to
account for unenumerated conduct that violates the subsection. If an
individual corruptly obstructs an official proceeding[] through his
conduct in relation to a tangible object, such person violates this
16
To be sure, outside of the January 6 cases brought in this
jurisdiction, there is no precedent for using § 1512(c)(2) to
prosecute the type of conduct at issue in this case. But “the
whole value of a generally phrased residual clause . . . is that it
serves as a catchall for matters not specifically contemplated
. . . .” Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009); see
also Griffin, 589 F.2d at 206–07 (“The obstruction of justice
statute [§ 1503] was drafted with an eye to the variety of
corrupt methods by which the proper administration of justice
may be impeded or thwarted, a variety limited only by the
imagination of the criminally inclined.” (citation and internal
quotation marks omitted)). As the Supreme Court has noted:
“[T]he fact that a statute can be applied in situations not
expressly anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth.” PGA Tour, Inc. v.
Martin, 532 U.S. 661, 689 (2001) (quoting Pa. Dep’t of Corr.
v. Yeskey, 524 U.S. 206, 212 (1998)).
C. Other Elements
Although the text of § 1512(c)(2) plainly extends to a wide
range of conduct, the statute contains some important
limitations: The act of “obstruct[ing], influenc[ing], and
imped[ing]” described in subsection (c)(2) must be
accompanied by “corrupt” intent; and the behavior must target
an “official proceeding.” Those other elements of a
§ 1512(c)(2) offense are not the focus of this appeal, but we
nevertheless note that they provide significant guardrails for
prosecutions brought under the statute.
subsection.”). We have reviewed those cases and find them
unpersuasive.
17
1. “Corrupt” Intent
The district court expressly declined to interpret
“corruptly” as used in § 1512(c), concluding only that “the
common meanings of ‘corruptly’ are sufficiently capacious so
as not to limit or clarify the actus reus charged in the
Indictment.” Miller, 2022 WL 1718984, at *5 n.3 (denying
government’s motion for reconsideration). I do not agree that
the meaning of “corruptly” is necessarily “capacious,” and note
that a narrow construction of “corruptly” would indeed limit
the actus reus of a § 1512(c)(2) violation. The requirement of
“corrupt” intent prevents subsection (c)(2) from sweeping up a
great deal of conduct that has nothing to do with
obstruction — for instance, lobbyists who know they advocate
for morally wrongful causes. See Appellees’ Br. 47. Notably,
the other crimes enumerated in § 1512 — such as killing,
threatening, or dissuading witnesses — are classic examples of
obstruction of justice. See Obstruction of Justice, Black’s Law
Dictionary (9th ed. 2009) (defining “obstruction of justice” as
“willful act[s] of corruption, intimidation or force which
tends[] in any way to distort or impede the administration of
law.” (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 552 (3d ed. 1982))). Subsection (c)(2) best fits with those
crimes if “corruptly” constrains its scope.
As relevant to the instant case, the allegations against
appellees appear to be sufficient to meet any proposed
definition of “corrupt” intent. Without expressing a preference
for any particular definition of “corruptly,” I consider three
candidates. First, in considering the meaning of 18 U.S.C.
§ 1512(b) in Arthur Andersen LLP v. United States, the
Supreme Court noted that the “natural meaning” of “corruptly”
is “clear” and that the word is “normally associated with
wrongful, immoral, depraved, or evil” conduct. 544 U.S. 696,
705 (2005). Second, the government here asserts that the
18
element of a “corrupt” state of mind is satisfied when a
defendant acts “with a corrupt purpose,” through
“independently corrupt means,” or both. Gov’t’s Reply 24
(quoting Sandlin, 575 F. Supp. 3d at 31); see also United States
v. North, 910 F.2d 843, 942–43 (D.C. Cir. 1990) (Silberman,
J., concurring and dissenting in part). A third definition of the
term “corruptly” was endorsed by Justice Scalia in his partial
concurrence in United States v. Aguilar, which examined the
phrase “corruptly . . . endeavors to influence, obstruct or
impede the due administration of justice” under § 1503. 515
U.S. at 616–17 (Scalia, J., concurring and dissenting in part).
Justice Scalia quoted with approval a jury instruction
specifying that “[a]n act is done corruptly if it’s done
voluntarily and intentionally to bring about either an unlawful
result or a lawful result by some unlawful method, with a hope
or expectation of either financial gain or other benefit to oneself
or a benefit of another person.” Id.Under all those formulations, “corrupt” intent exists at
least when an obstructive action is independently unlawful —
i.e., an independently unlawful act is necessarily “wrongful”
and encompasses a perpetrator’s use of “independently corrupt
means” or “an unlawful method.” Id.; North, 910 F.2d at 942–
43 (Silberman, J., concurring and dissenting in part); see also
Sandlin, 575 F. Supp. 3d at 33–34. Each appellee in this
consolidated appeal is charged with assaulting law
enforcement officers while participating in the Capitol riot, and
such behavior clearly meets the test of independently unlawful
conduct. Furthermore, the additional element identified by
Justice Scalia also appears to be met: Appellees’ alleged
intentions of helping their preferred candidate overturn the
election results would suffice to establish a “hope or
expectation of either . . . benefit to oneself or a benefit of
another person.” Aguilar, 515 U.S. at 616–17 (Scalia, J.,
concurring and dissenting in part). Thus, the sufficiency of the
19
indictments in this case does not turn on the precise definition
of “corruptly.” Because the task of defining “corruptly” is not
before us and I am satisfied that the government has alleged
conduct by appellees sufficient to meet that element, I leave the
exact contours of “corrupt” intent for another day.
The concurring opinion embraces the definition of
“corruptly” that requires proof that the defendant acted “with
an intent to procure an unlawful benefit either for himself or
for some other person.” Concurring Op. at 1. But the meaning
of “corruptly” was discussed only peripherally in the parties’
briefs and in the district court’s opinion, and no party requested
the standard that the concurrence adopts. Thus, the detailed
analysis proffered by the concurrence is not a product of the
crucible of litigation. See Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983) (“The premise of our adversarial system
is that appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.”);
accord United States v. Van Smith, 530 F.3d 967, 974 (D.C.
Cir. 2008). Forgoing the benefits of the normal litigation
process may cause us to overlook arguments, precedents, and
practical considerations that the parties would have brought to
our attention to aid our decision-making if they were given that
opportunity. Cf. United States v. West, 392 F.3d 450, 459 (D.C.
Cir. 2004) (“Rulings on issues that have not been fully argued
run the risk of being improvident or ill-advised.” (internal
quotation and citation omitted)). For example, the concurring
opinion does not appear to consider that there are around 50
other references to “corruptly” in Title 18 of the U.S. Code.
Adopting the concurrence’s definition of “corruptly” could
make it more difficult for the government to prosecute all the
crimes defined in those other statutes — including obstruction
of justice under 18 U.S.C. § 1503, a statute for which the
Supreme Court has declined to approve the very definition of
20
“corruptly” espoused by the concurrence. See Aguilar, 515
U.S. at 599–602. Adding a new element to be proved in other
prosecutions involving “corrupt” intent would be a significant
change, which the government has not had a chance to address.
At least one pending case on this court’s docket squarely raises
the definition of “corruptly” under § 1512(c). See United
States v. Robertson, No. 22-3062. It is more prudent to delay
addressing the meaning of “corrupt” intent until that issue is
properly presented to the court.
Although the dissenting opinion disagrees with this
opinion about the scope of the actus reus under § 1512(c), we
share much common ground on the issue of mens rea. The
dissent declines to settle on a precise meaning of “corruptly” at
this time, declines to endorse the concurrence’s definition of
“corruptly,” and recognizes that § 1512(c) is not vague as
applied to the “extreme conduct” of the appellees in this case.
See Dissenting Op. at 31–38 (discussing possible definitions of
“corruptly”), 35–37 (criticizing definition of “corruptly”
favored by the concurrence), 37 (stating that it is “true” that
§ 1512(c) “is not vague as applied to the extreme conduct
alleged here”). Notably, there does not appear to be any
conflict between the dissent and this opinion regarding the
sufficiency of the allegations against the appellees in this case
to establish the requisite mens rea. The dissent expresses
concern about how to address the mens rea of advocates,
lobbyists, and peaceful protesters, who are not before the court,
see id. at 32–34, 37; but the dissent never takes the position that
appellees did not act “corruptly” when they assaulted police
officers to obstruct proceedings before the Congress. Instead,
the dissent argues only that the mens rea element does not
meaningfully limit the scope of § 1512(c) and that we should
21
acknowledge that Congress limited the actus reus to narrow the
reach of the statute. Id. at 38. 5
5
The concurrence suggests that its opinion might bind future
panels under Marks v. United States, 430 U.S. 188 (1977). The
Marks rule instructs that, “when the [Supreme] Court issues
fragmented opinions, the opinion of the Justices concurring in the
judgment on the ‘narrowest grounds’ should be regarded as the
Court’s holding.” King v. Palmer, 950 F.2d 771, 780 (D.C. Cir.
1991) (en banc) (quoting Marks, 430 U.S. at 193). But this court has
never applied Marks to its own cases. It seems that only one federal
appellate court has done so, see Binderup v. U.S. Att’y Gen., 836 F.3d
336, 356 (3d Cir. 2016) (en banc), and there is good reason not to
extend Marks any further. The Marks rule is “‘more easily stated
than applied . . . [it] has so obviously baffled and divided the lower
courts that have considered it’ that it has created a ‘degree of
confusion’ such that it is not aways ‘useful to pursue to the utmost
logical possibility.’” United States v. Epps, 707 F.3d 337, 348 (D.C.
Cir. 2013) (cleaned up) (quoting Nichols v. United States, 511 U.S.
738, 745–46 (1994)). Moreover, “[b]ecause it applies precisely
when there is no majority view of the law, Marks creates precedents
that are unlikely to be either legally correct or practically desirable.”
Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1942,
1946 (2019).
In any event, the instant case is a poor vehicle for applying
Marks. First, the concurring opinion’s attempt to establish its view
as controlling must fail because a majority of the panel has expressly
declined to endorse the concurrence’s definition of “corruptly.” See
supra at 17–21; Dissenting Op. at 36–37 (“The concurrence’s
approach thus requires transplanting into section 1512(c)(2) a mens
rea requirement that has been used so far only in tax law.”). Second,
the concurrence’s definition is not one with which this opinion “must
necessarily agree as a logical consequence of its own, broader
position” because this opinion takes no position on the exact meaning
of “corruptly.” King, 950 F.2d at 782 (emphasis added). This
opinion’s holding on “corruptly” is grounded in the mere sufficiency
22
Finally, appellees err in arguing that the term “corruptly”
“takes on unconstitutional vagueness” in circumstances outside
the context of a judicial proceeding. Appellees’ Br. 33. A
criminal law violates the Due Process Clause if it is “so vague
that it fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary
enforcement.” Johnson v. United States, 576 U.S. 591, 595
(2015). Appellees contend that prohibiting “bad, evil, and
improper” purposes is insufficient where congressional
proceedings are implicated because “no one can seriously
question that people constantly attempt, in innumerable ways,
to obstruct or impede congressional committees.” Appellees’
Br. 33–34 (quoting North, 910 F.2d at 882; United States v.
Reeves, 752 F.2d 995, 999 (5th Cir. 1985)). But it is beyond
debate that appellees and other members of the public had fair
notice that assaulting law enforcement officers in an effort to
prevent Congress from certifying election results was
“wrongful” and “corrupt” under the law. See also Dissenting
Op. at 37 (stating that it is “true” that § 1512(c) “is not vague
as applied to the extreme conduct alleged here”).
of the allegations in this particular case — it states only that the
alleged conduct of the three appellees is sufficient under any
understanding of “corrupt” intent. See supra at 17–18, 21. By
contrast, the concurring opinion goes further and affirmatively
adopts a new test for “corrupt” intent that has not been requested by
any party — that is not a “logical subset” of an opinion that expresses
no preference for any definition of “corruptly.” See supra at 18;
King, 950 F.2d at 781; cf. Abbas v. Foreign Pol’y Grp., LLC, 783
F.3d 1328, 1337 (D.C. Cir. 2015) (“[N]either opinion can be
considered the Marks middle ground or narrowest opinion, as the
four Justices in dissent simply did not address the issue.”).
23
2. “Official Proceeding”
The district court ruled that congressional certification of
the Electoral College count is an “official proceeding.” See
Miller, 589 F. Supp. 3d at 66–67 (“[A]s used in § 1512,
‘official proceeding’ is a defined term, and its definition covers
the Congressional certification of Electoral College results.”).
Appellees challenge that ruling, apparently as an alternative
basis to uphold the district court’s dismissal of the § 1512(c)(2)
count. See Yeager v. United States, 557 U.S. 110, 126 (2009)
(prevailing party may defend judgment on any grounds
properly raised below); United States v. Coughlin, 610 F.3d 89,
108 (D.C. Cir. 2010) (explaining that “this court can affirm a
correct decision even if on different grounds than those
assigned in the decision on review” (citation omitted)).
We agree with the district court. The statutory definition
of “official proceeding” under § 1512(c)(2) includes a
“proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B).
Although appellees strain to argue that the Electoral College
vote certification is not a “proceeding before the Congress”
because it does not involve “investigations and evidence,”
Appellees’ Br. 40, 43–47, we see no such limit in the ordinary
meaning of the word “proceeding.” See Proceeding, Oxford
English Dictionary (2d ed. 1989) (“[T]he carrying on of an
action or series of actions.”). Appellees rely on a narrower,
alternative definition of “proceeding” to support their position
— “[t]he regular and orderly progression of a lawsuit,
including all acts and events between the time of
commencement and the entry of judgment; any procedural
means for seeking redress from a tribunal or agency; and the
business conducted by a court or other official body; a
hearing.” Appellees’ Br. 45 (citing United States v. Ermoian,
752 F.3d 1165, 1169 (9th Cir. 2013) (quoting Proceeding,
Black’s Law Dictionary (8th ed. 2004))). But that definition is
24
inapt when interpreting the meaning of a “proceeding before
the Congress.” 18 U.S.C. § 1515(a)(1)(B) (emphasis added).
Notably, Congress follows statutory directives to complete
the certification of the Electoral College vote, including:
(1) convening a joint session at 1:00 PM on January 6 in the
year following the presidential election; (2) appointing four
tellers to read and list the votes; (3) announcement of the voting
results by the President of the Senate; and (4) allowing written
objections from members of Congress, subject to a procedure
for submitting and resolving such objections. See 3 U.S.C.
§ 15. Those directives reflect Congress’s own intent that the
vote certification shall be a “proceeding before the Congress.”
18 U.S.C. § 1515(a)(1)(B).
* * *
In sum, the necessity of “corrupt” intent and the statutory
definition of “official proceeding” both serve to meaningfully
cabin the scope of § 1512(c)(2). The statute therefore is not so
expansive as to demand a narrowing construction, as appellees
appear to contend.
II. Alternative Interpretations
In contrast to the straightforward reading of § 1512(c)(2)
urged by the government, appellees and the district court’s
interpretations of the statute “read like elaborate efforts to
avoid the most natural meaning of the text.” Patel v. Garland,
142 S. Ct. 1614, 1623 (2022). The district court deployed tools
of statutory construction and a historical analysis to conclude
that § 1512(c)(2) is applicable only if a defendant takes “action
with respect to a document, record, or other object in order to
corruptly obstruct, impede or influence an official proceeding.”
Miller, 589 F. Supp. 3d at 78. Appellees employ the same tools
to argue that the subsection is restricted to “discrete acts
25
intended to affect the availability or integrity of evidence used
in an official proceeding.” Appellees’ Br. 15. Additionally,
appellees assert that § 1512(c)(2) does not apply to their
alleged conduct under the principles of lenity and restraint.
Although we find the language of the statute unambiguous and
could end our analysis there, see Conn. Nat’l Bank, 503 U.S. at253–54, we have nevertheless reviewed the district court’s
detailed analysis, as well as appellees’ alternative construction.
We find both interpretations unpersuasive.
A. Statutory Text and Structure
The district court construed the term “otherwise” in
§ 1512(c)(2) to mean “similar . . . in some respects but different
in others.” See Miller, 589 F. Supp. 3d at 71 (quoting Begay,
553 U.S. at 144). This construction requires a violation of
subsection (c)(2) to be “similar” to the violation proscribed in
subsection (c)(1). Thus, according to the district court, (c)(2)
captures only offenses related to documents, records, or objects
that are not covered by subsection (c)(1).
Appellees, meanwhile, endorse the district court’s
definition of “otherwise” but argue that the similarity between
the two subsections is that they both address “evidence
impairment.” Appellees’ Br. 18–20. Appellees further assert
that their narrowing interpretation is compelled by the
principles that courts should not construe general terms to
render a statute’s more specific proscriptions meaningless (the
ejusdem generis canon) and should construe words in a statute
in light of the company they keep (the noscitur a sociis canon).
In their view, the terms “obstruct[ing], influenc[ing], or
imped[ing]” found in subsection (c)(2) are general ones that
follow and “keep company” with subsection (c)(1)’s “more
specific” terms of “alter[ing], destroy[ing], mutilat[ing], or
conceal[ing].” Appellees’ Br. 19. As a result, they contend,
26
“subsection (c)(2) criminalizes acts different from the object-
impairment crimes listed in subsection (c)(1) but which are still
intended to affect the integrity or availability of evidence . . . .”
Id. at 20.
As an initial matter, it is implausible that Congress
intended § 1512(c)(2) to apply to obstructive acts related only
to documents, objects, records, or other evidence, yet chose the
words “otherwise obstructs, influences, or impedes any official
proceeding” to express that intent. If Congress’s goal were to
criminalize a subset of obstructive behavior, it easily could
have used words that precisely define that subset, such as
“otherwise compromises a record, document, or other object,”
or “otherwise impairs the integrity or availability of evidence
for use in an official proceeding.” See Montgomery, 578 F.
Supp. 3d at 73. In fact, Congress enacted exactly that kind of
precise directive in § 1505 and in § 1519, the latter at the same
time as § 1512(c). See 18 U.S.C. § 1505 (“Whoever . . .
withholds, misrepresents, removes from any place, conceals,
covers up, destroys, mutilates, alters, or by other means
falsifies any documentary material . . . [s]hall be [fined,
imprisoned, or both].”); § 1519 (“Whoever . . . alters, destroys,
mutilates, conceals, covers up, falsifies, or makes a false entry
in any record, document, or tangible object . . . shall be [fined,
imprisoned, or both].”); see also Sarbanes-Oxley Act, Pub. L.
No. 107-204, § 802(a), 116 Stat 745, 800 (2002). Congress
thus has demonstrated its capacity to clearly target document-
related misconduct when it wishes to do so. To accept either
the document-focused or evidence-limited interpretation of
§ 1512(c), we would have to conclude that Congress expressed
its intent with words that were almost certain to be
misunderstood. See supra Section I.B (enumerating the many
federal courts that have given § 1512(c)(2) its natural, broad
reading and failed to decode the statute’s ostensibly “true”
meaning).
27
The district court’s cramped, document-focused
interpretation is also dubious because the words of
§ 1512(c)(1) are already quite comprehensive — that
subsection addresses “alter[ing], destroy[ing], mutilat[ing], or
conceal[ing]” documents, records, and objects. It is difficult to
envision why a catch-all aimed at even more document-related
acts would be necessary as a backstop. Although the district
court opined that § 1512(c)(1) arguably does not account for
conduct that “covers up, falsifies, or makes a false entry in” a
record or document, see Miller, 589 F. Supp. 3d at 71, we
cannot assume, and think it unlikely, that Congress used
expansive language to address such narrow concerns. We must
accept, and think it far more likely, that Congress said what it
meant and meant what it said: Section 1512(c)(2) prohibits all
acts that obstruct, influence, or impede any official proceeding
or attempt to do so, beyond the document or object-related acts
that are already covered by § 1512(c)(1). See Conn. Nat’l
Bank, 503 U.S. at 253–54.
The district court appeared to believe that its interpretation
of § 1512(c)(2) was compelled by Begay v. United States. See
Miller, 589 F. Supp. 3d at 71, 71 n.8. There, the Supreme Court
considered whether driving under the influence (“DUI”)
qualified as a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii),
which defines a violent felony as a crime punishable by over a
year’s imprisonment that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another
. . . .” § 924(e)(2)(B)(ii) (emphasis added); Begay, 553 U.S. at
140. The Court concluded that a DUI was not a violent felony
because “the provision’s listed examples — burglary, arson,
extortion, or crimes involving the use of explosives — illustrate
the kinds of crimes that fall within the statute’s scope[,]” and a
DUI was not “roughly similar, in kind as well as in degree of
risk posed, to the examples themselves.” Begay, 553 U.S. at
28
142–43. In reaching that conclusion, the Court rejected the
government’s argument “that the word ‘otherwise’ is sufficient
to demonstrate that the examples do not limit the scope of the
clause.” Id. at 144 (emphasis in original).
Begay is inapposite because it interprets a statute with a
very different structure. Section 924(e)(2)(B)(ii) includes a list
of examples followed by “otherwise” in a single, unbroken
sentence within the same subparagraph. See § 924(e)(2)(B)(ii)
(“burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another” (emphasis added)). By contrast,
the “otherwise” clause in § 1512(c)(2) sits within a separately
numbered subparagraph, after a semicolon and line break, all
of which put distance between it and the lists of verbs and
objects included in subsection (c)(1). Thus, while the position
of “otherwise” in § 924(e)(2)(B)(ii) inherently relates the word
to the list immediately before it, § 1512(c)(2)’s structure places
(c)(1) and (c)(2) “visually on an equal footing and indicat[es]
that they have separate meanings.” Loughrin v. United States,
573 U.S. 351, 359 (2014) (explaining that “two clauses [that]
have separate numbers, line breaks before, between, and after
them, and equivalent indentation” have “separate meanings.”).
Moreover, Begay did not ultimately rely on the more
obscure reading of “otherwise” embraced by the district court
and appellees, focusing instead on the structure of
§ 924(e)(2)(B)(ii). Indeed, the Begay Court conceded that the
definition of “otherwise” favored by the district court and
appellees need not inexorably be applied, noting that “the word
‘otherwise’ can (we do not say must) refer to a crime that is
similar to the listed examples in some respects but different in
others . . . .” Id. at 144 (emphasis in original) (citing id. at 150–
51 (Scalia, J., concurring in the judgment)). Begay thus does
29
not dictate an evidence-focused reading of § 1512(c)(2), and
does not necessarily even support it.
Appellees’ invocation of the ejusdem generis and noscitur
a sociis canons also does not convince us to reject the natural
reading of § 1512(c)(2). “The ejusdem generis canon applies
when a drafter has tacked on a catchall phrase at the end of an
enumeration of specifics, as in dog, cats, horses, cattle, and
other animals.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 199 (2012) (emphasis
in original). In other words, the canon requires that the term at
issue be “directly preceded by a list of terms.” Overdevest
Nurseries, L.P. v. Walsh, 2 F.4th 977, 983 (D.C. Cir. 2021).
Likewise, the noscitur a sociis or associated-words canon
generally instructs that “a word is known by the company it
keeps,” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226
(2008), but requires some context cues indicating that the
statutory text should be limited by its company, see id., and
“especially holds that ‘words grouped in a list should be given
related meanings,’” Scalia & Garner, Reading Law 195
(quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S.
312, 322 (1977)). See also Overdevest Nurseries, 2 F.4th at
983 (“[T]he noscitur canon appl[ies] when the term in question
is directly preceded by a list of terms.”). In § 1512(c)(2), the
word “otherwise” does not immediately follow a list of terms.
The supposedly general verbs appellees cite are in separate
subparagraphs that provide no other cues that they should be
read in concert with the specific verbs or objects preceding
them. See § 1512(c)(2); Ali, 552 U.S. at 226.
More fundamentally, appellees do not identify any
“common attribute” connecting the two subsections,
undermining their reliance on contextual canons. See Ali, 552
U.S. at 224–26. The subsections’ disparate verbs and objects
defy any attempt to group them together: subsection (c)(1)
30
protects “a record, document, or other object” from being
“altered, destroyed, mutilated or concealed” while subsection
(c)(2) prohibits “obstructing, influencing or impeding any
official proceeding.” § 1512(c). The verbs and nouns in each
subsection do not share any qualities or characteristics that help
determine their meaning in context. Indeed, it is challenging
to imagine how anyone could either alter, destroy, mutilate, or
conceal an official proceeding, or obstruct, influence, or
impede a record. See Ali, 552 U.S. at 224–26; cf. Yates, 574
U.S. at 549–52 (Alito, J. concurring in the judgment)
(explaining that noscitur a sociis and ejusdem generis canons
applied in part because the verbs and nouns shared common
attributes). The ejusdem generis and noscitur a sociis canons
are therefore irrelevant. See also Yates v. United States, 574
U.S. 528, 545 (2015) (explaining that Begay relied on principle
of ejusdem generis).
B. Statutory History and Context
The district court concluded, and appellees now argue, that
§ 1512(c)(2)’s historical development and context foreclose
the natural reading of its words. Of course, we need not
consider the legislative history because the meaning of the
statute is clear from its text. See Milner v. Dep’t of Navy, 562
U.S. 562, 572 (2011); N. Am. Butterfly Ass’n v. Wolf, 977 F.3d
1244, 1261 (D.C. Cir. 2020). Nevertheless, we have reviewed
the district court’s analysis of the statute’s development and
history and find nothing in those materials that is inconsistent
with a broad reading of the statute.
1. Statutory Development and Legislative History
Congress enacted § 1512(c)(2) as part of the Sarbanes-
Oxley Act. That “Act, all agree, was prompted by the exposure
of Enron’s massive accounting fraud and revelations that the
company’s outside auditor, Arthur Andersen LLP, had
31
systematically destroyed potentially incriminating
documents.” Yates, 574 U.S. at 535–36. The Enron
prosecutions revealed a critical gap in the U.S. Code: The then-
current version of § 1512(b) prohibited a defendant from
persuading another person to destroy records in connection
with an investigation or other proceeding but imposed no
liability on those who personally destroyed evidence. See id.
at 536; see also S. Rep. No. 107-146, at 6–7 (May 6, 2002)
(“[C]ertain current provisions in Title 18, such as section
1512(b), make it a crime to persuade another person to destroy
documents, but not a crime for a person to destroy the same
documents personally. . . . [I]n the current Andersen case,
prosecutors have been forced to use the ‘witness tampering’
statute, 18 U.S.C. 1512, and to proceed under the legal fiction
that the defendants are being prosecuted for telling other people
to shred documents, not simply for destroying evidence
themselves.”).
The district court and appellees contend that a broad
reading of the statute is unsupported by the statutory history
because such a construction does more than simply fill the gap
exposed by the Enron scandal. But any discrepancy between
Congress’s primary purpose in amending the law and the broad
language that Congress chose to include in § 1512(c)(2) must
be resolved in favor of the plain meaning of the text. After all,
“statutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our
legislators by which we are governed.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 79 (1998); accord Bostock
v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020).
Appellees and the district court’s reliance on legislative
history to support their interpretations of § 1512(c) is also
unavailing. Although the Senate Report on the initial draft of
32
the Sarbanes-Oxley Act explains that provisions like § 1519
were intended to address corporate, evidence-related fraud, see
Yates, 574 U.S. at 536, that Report sheds no light on the
purpose of § 1512(c). Unlike the other provisions of the Act,
§ 1512(c) was introduced in a floor amendment late in the
legislative process. See 128 Cong. Rec. S6542 (daily ed. July
10, 2002). The title of that amendment — “Tampering with a
Record or Otherwise Impeding an Official Proceeding” — not
only tracks the language of subsections § 1512(c)(1) and (c)(2),
but also suggests that subsection (c)(2) prohibits any
obstruction of an official proceeding. See id. (emphasis
added); Sarbanes-Oxley Act, § 1102; see also Yates, 574 U.S.
at 540 (“While . . . headings are not commanding, they supply
cues” about Congress’s intent).
The district court and appellees postulate that the title of
§ 1512 — “Tampering with a witness, victim, or an informant”
— is significant because it “captures the narrow, evidentiary
focus of the rest of the statute.” Miller, 589 F. Supp. 3d at 73
n.9. But as the district court acknowledged, that title does not
reflect any of the behavior prohibited by § 1512(c). See Miller,
589 F. Supp. 3d at 73 n.9. It appears that Congress chose not
to update the title of § 1512 when it passed the Sarbanes-Oxley
Act, even though the Act indisputably expanded liability under
that section. Compare Victim and Witness Protection Act of
1982, Pub. L. No. 97-291, § 4, 96 Stat 1248, 1249 (1982)
(originally enacting § 1512), with Sarbanes-Oxley Act § 1102.
We therefore find the title of the amendment proposing
§ 1512(c) more enlightening than the outdated and unaltered
title of § 1512.
The only other hints about Congress’s intent in adding
§ 1512(c) are found in floor statements. “[F]loor statements by
individual legislators rank among the least illuminating forms
of legislative history.” See NLRB v. SW Gen., Inc., 580 U.S.
33288, 307 (2017). To the extent that such statements are useful
here, they suggest that § 1512(c) was intended to cover more
than just document-related or evidence-impairment crimes. To
be sure, some statements by Senators Trent Lott and Orrin
Hatch reflect a desire to prohibit the destruction of documents
or evidence. See 148 Cong. Rec. S6545 (statement of Sen.
Lott) (“The second section [of the amendment] would enact
stronger laws against document shredding . . . I think this is
something we need to make clear so we do not have a repeat of
what we saw with the Enron matter earlier this year.”), S6550
(statement of Sen. Hatch) (“[T]his amendment would permit
the government to prosecute an individual who acts alone in
destroying evidence, even where the evidence is destroyed
prior to the issuance of a grand jury subpoena.”). Yet Senator
Hatch also indicated that the amendment was aimed at
obstruction generally, remarking that it “strengthens an
existing federal offense that is often used to prosecute
document shredding and other forms of obstruction of justice.”
Id. S6550 (emphasis added).
In short, subsection (c)(2)’s historical development is
entirely consistent with the broad language of its text.
2. Statutory Context: Surplusage and Mouseholes
The district court and appellees further believe that the
doctrine disfavoring “surplusage” weighs in favor of a limiting
interpretation. They contend that reading subsection (c)(2)
broadly renders other, more specific prohibitions, like those in
subsection (c)(1), unnecessary or “surplusage.” Specifically,
the district court asserted that the broad reading of § 1512(c)(2)
would swallow conduct already made unlawful by provisions
in § 1512 that generally prohibit indirect attempts to obstruct
34
or impede a proceeding. 6 Appellees add that the natural
reading of § 1512(c)(2) would duplicate § 1503 and § 1505.
As the district court acknowledged, “superfluity is not
typically, by itself, sufficient to require a particular statutory
interpretation.” Miller, 589 F. Supp. 3d at 73 (citing Hubbard
v. United States, 514 U.S. 695, 714 n.14 (1995)). Indeed, “[w]e
find redundancies that are . . . pitted against otherwise plain
meanings to be feeble interpretive clues.” Mercy Hosp., Inc. v.
Azar, 891 F.3d 1062, 1068 (D.C. Cir. 2018). Moreover,
“substantial” overlap between provisions “is not uncommon in
criminal statutes.” Loughrin, 573 U.S. at 358 n.4 (citing
Hubbard, 514 U.S. at 714 n.14). Here, even if we were to
accept the interpretations of the district court and appellees,
there would be numerous other subsections that also apply to
corruptly obstructing an official proceeding through conduct
affecting documents, records, or other objects, or the integrity
or availability of evidence. 7 Thus, the canon against
6
The overlapping provisions cited by the court include
§ 1512(a)(1)(A) and (B) (prohibiting killing another for obstructive
purposes); § 1512(a)(2)(A), (B)(i), and (B)(iii)–(iv) (prohibiting
using physical force or the threat of physical force against any person
for obstructive purposes); § 1512(b)(1) (prohibiting intimidation,
threats, or corrupt persuasion of another to obstruct testimony in an
official proceeding); § 1512(b)(2)(A), (C), and (D) (prohibiting
causing or inducing any person to withhold testimony or evidence
from an official proceeding, to avoid appearing or providing
evidence at an official proceeding, or to be absent from an official
proceeding); and § 1512(d)(1) (prohibiting harassment of another
that obstructs any person from attending or testifying in an official
proceeding).
7
See, e.g., § 1503 (forbidding corruptly influencing, obstructing,
or impeding the due administration of justice, or attempting to do so);
§ 1512(a)(1)(B), (a)(2)(B)(i)–(ii), (b)(2)(A)–(B) (forbidding
violence, intimidation, corrupt persuasion, or misleading conduct
35
superfluity carries little weight here because it “‘merely favors
that interpretation which avoids surplusage,’ not the
construction substituting one instance of superfluous language
for another.” See United States v. Ali, 718 F.3d 929, 938 (D.C.
Cir. 2013) (emphasis in original) (quoting Freeman v. Quicken
Loans, Inc., 566 U.S. 624, 635 (2012)).
Much of the superfluity engendered by § 1512(c) is easily
explained by the fact that Congress drafted and enacted that
subsection after the rest of § 1512. See Yates, 574 U.S. at 541.
Subsection (c) prohibits both direct and indirect obstruction of
official proceedings, and adds a catch-all provision. The
subsection was inserted into a statute that already addressed
specific forms of indirect obstruction of proceedings —
subsections (a), (b), and (d) prohibit interfering with other
persons in various ways. Congress could have eliminated the
overlap between subsection (c) and the other existing
provisions only if it completely rewrote § 1512, rather than just
adding the new subsection. Congress reasonably declined to
do that. Instead, Congress chose to allow overlap in several
parts of the statutory scheme. Compare 18 U.S.C. § 1505, with
18 U.S.C. § 1519; cf. Aguilar, 515 U.S. at 616 (Scalia, J.,
concurring and dissenting in part) (“The fact that there is now
some overlap between § 1503 and § 1512 is no more
intolerable than the fact that there is some overlap between the
omnibus clause of § 1503 and the other provisions of § 1503
against another, with intent to cause a person to withhold testimony
or a record, document, or other object from an official proceeding;
or with intent to cause a person to impair an object’s integrity or
availability in an official proceeding — or attempting to do so);
§ 1519 (forbidding knowingly altering, destroying, mutilating,
concealing, covering up, falsifying, or making a false entry in a
record, document, or tangible object with intent to impede, obstruct,
or influence an investigation by, or the proper administration of, a
federal department or agency).
36
itself.”). Nor is the fact that overlapping subsections have
different penalties a reason to contradict the plain meaning of
subsection (c)(2). See United States v. Batchelder, 442 U.S.
114, 120–21 (1979) (finding no ambiguity in 18 U.S.C.
§ 924(a) even though 18 U.S.C. § 1202 “provides different
penalties for essentially the same conduct,” because that is “no
justification for taking liberties with unequivocal statutory
language.”).
The district court was additionally troubled by the
placement of subsection (c)(2). It reasoned that subsection
(c)(2) was much broader in scope than subsections (a), (b),
(c)(1), or (d), and that this “inconsistency would come in the
oddest of places: in a subsection of a subsection nestled in the
middle of the statute.” Miller, 589 F. Supp. 3d at 73. Appellees
similarly argue that the broad reading of § 1512(c)(2) would
locate “an elephant in a mousehole.” Appellees’ Br. 30.
The “elephants in mouseholes” principle does not apply
here. That principle recognizes that “Congress . . . does not
alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions — it does not, one might say, hide
elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns,
Inc., 531 U.S. 457, 468 (2001). Section 1512(c)(2) is not
vague, as we have explained. Nor is it an “ancillary provision.”
Subsection (c) expands the scope of § 1512 to cover direct acts
of obstruction. It forbids corrupt obstruction of official
proceedings and is logically located within a section that
enumerates obstructive offenses that affect official
proceedings. And that section, in turn, sits within a Chapter
dedicated to obstruction crimes. See Yates, 574 U.S. at 540–42
(explaining that Congress placed § 1512(c) among the
statutory scheme’s “broad proscriptions” that “address
obstructive acts relating broadly to official proceedings and
criminal trials”). As we have already discussed, the location of
37
the provision is explained by its late addition during the
legislative process and its purpose of expanding liability
without rewriting § 1512 in its entirety. Furthermore, we are
unconcerned about the relative placement of subsections (c)(1)
and (c)(2). It is common for a more specific subsection — such
as the one involving documents, records, and objects — to
appear first, followed by a catch-all provision. See, e.g., 18
U.S.C. §§ 1503, 1505; see also supra Section I.A.
Accordingly, we are unmoved by any claims of superfluity and
“elephants in mouseholes.”
C. Lenity and Restraint
Finally, the district court cited the principle of restraint and
the rule of lenity to decline to apply § 1512(c)(2) to the alleged
conduct of appellees; and appellees urge us to rely on those
concepts here. Both are inapplicable.
Under the principle of restraint, “when choice has to be
made between two readings of what conduct Congress has
made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in
language that is clear and definite.” Dowling v. United States,
473 U.S. 207, 214 (1985) (citations and internal quotation
marks omitted). Similarly, “[t]he rule of lenity requires
ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them.” United States v. Santos, 553
U.S. 507, 514 (2008). The rule thus “applies only when a
criminal statute contains a ‘grievous ambiguity or uncertainty,’
and ‘only if, after seizing everything from which aid can be
derived,’ the Court ‘can make no more than a guess as to what
Congress intended.’” Ocasio v. United States, 578 U.S. 282,
295 n.8 (2016) (quoting Muscarello v. United States, 524 U.S.
125, 138–39 (1998)); see also United States v. Shabani, 513
U.S. 10, 17 (1994) (explaining that the rule “applies only when,
38
after consulting traditional canons of statutory construction, we
are left with an ambiguous statute.”). As we have explained,
the language of § 1512(c)(2) is clear and unambiguous.
Restraint and lenity therefore have no place in our analysis.
* * *
39
For all the foregoing reasons, we conclude that the district
court erred in dismissing the counts charging each appellee
with Obstruction of an Official Proceeding under 18 U.S.C.
§ 1512(c)(2). Appellees’ alleged conduct falls comfortably
within the plain meaning of “corruptly . . . obstruct[ing],
influenc[ing], or imped[ing] [an] official proceeding, or
attempt[ing] to do so.” The alternative interpretations of
§ 1512(c)(2) proffered by the district court and appellees fail to
convince us to depart from the natural reading of the statute’s
unambiguous text. Accordingly, we reverse the orders of the
district court, and remand for further proceedings consistent
with this opinion. 8
So ordered.
8
I respectfully disagree with our dissenting colleague. The
dissent does not appear to dispute that our interpretation of § 1512(c)
is the most natural reading of the statute. Rather, it relies primarily
on perceived ambiguity and the rule of lenity to reject our reading.
The dissenting opinion chooses to adopt the “evidence-impairment”
approach because it “has a bit of a Goldilocks quality to it — not too
narrow and not too broad, but just right.” Dissenting Op. at 15. Even
assuming ambiguity, however, the dissenting opinion cites no
authority — other than Goldilocks — for replacing the most natural
reading of the statute with an alternative interpretation that has no
basis in the statutory text but feels “just right.” Id. Nor can the
dissenting opinion’s unorthodox methodology be justified by its goal
of avoiding the broad implications of what Congress wrote in the
statute. Although the dissenting opinion cites Bond v. United States,
572 U.S. 844, 860 (2014), for the proposition that a statute’s
expansive reach can create ambiguity, Dissenting Op. at 27–28, that
case does not explain why the dissent selects the atextual evidence-
impairment theory over the district court’s physical-evidence
limitation, which is at least grounded in statutory language.
40
The dissenting opinion appears to be premised on a
misunderstanding of the text and structure of § 1512(c). It describes
§ 1512(c) as containing the following type of list: “A, B, C, or
otherwise D.” See Dissenting Op. at 9–10. According to the dissent,
“in ordinary English usage, the verbs preceding a residual otherwise
clause usually do help narrow its meaning.” Id. at 6 (emphasis in
original). Moreover, the dissent notes, the interpretation of such a
list should not change if it is punctuated differently, such as with
semicolons: “A; B; C; or otherwise D.” Id. at 10. But the structure
of § 1512(c) is considerably more complicated than the dissent would
have us believe. Tellingly, every example of “A, B, C, or otherwise
D” proffered by the dissent involves a straightforward list of actions
or things, followed by an “otherwise clause” that features a single,
related verb or noun. Id. at 6 (“punches, kicks, bites, or otherwise
injures”), 6–7, (“lions, tigers, giraffes, and other animals”), 11–12
(“drive . . . ; accelerate or decelerate . . . ; change lanes . . . ; cut off
or tailgate other cars; yell, gesture, or make strange faces . . . ; or
otherwise put us in danger . . . .”). Unlike the dissent’s asserted
analogies, however, § 1512(c) includes both a list of verbs and a list
of objects before “otherwise,” with a completely different list of
verbs and a different type of object following “otherwise.” See 18
U.S.C § 1512(c) (“alters, destroys, mutilates, or conceals a record,
document, or other object . . .; or otherwise obstructs, influences, or
impedes any official proceeding”). The actual statutory structure is
therefore more like the following: “Whoever does A, B, or C to
lions, tigers, or giraffes; Or otherwise does X, Y, or Z to the jungle”
will suffer consequences. The dissent’s insistence that § 1512(c)
follows the “A, B, C, or otherwise D” pattern is puzzling, given its
concession that the statute’s two subsections “do not fit neatly
together,” making “any harmonization . . . textually awkward.”
Dissenting Op. at 15. The provisions of § 1512(c) are a poor fit for
the dissenting opinion’s extensive analysis of the simple “A, B, C, or
otherwise D” formulation. Because the dissenting opinion interprets
a statutory structure that is not before us, its reasoning is
unconvincing.
WALKER, Circuit Judge, concurring in part and concurring in
the judgment:
On January 6, 2021, Joseph Fischer, Edward Lang, and
Garret Miller allegedly joined in that day’s riot at the United
States Capitol. They were indicted on multiple counts, includ-
ing under 18 U.S.C. § 1512(c)(2) for “corruptly . . . ob-
struct[ing], influenc[ing], or imped[ing]” an “official proceed-
ing.” The district court dismissed those counts after conclud-
ing that the Defendants’ alleged conduct is not covered by
(c)(2).
That was a mistake. If proven at trial, the Defendants’ “ef-
forts to stop Congress from certifying the results of the 2020
presidential election” are the kind of “obstructive conduct” pro-
scribed by (c)(2). Lead Op. 8. I thus concur in the Court’s
judgment and join the lead opinion’s interpretation of (c)(2)’s
act element.
I do not join Section I.C.1 of the lead opinion — which
declines to decide the scope of (c)(2)’s “corrupt[ ]” mental
state — because I believe that we must define that mental state
to make sense of (c)(2)’s act element. If (c)(2) has a broad act
element and an even broader mental state, then its “breathtak-
ing” scope is a poor fit for its place as a residual clause in a
broader obstruction-of-justice statute. See Van Buren v. United
States, 141 S. Ct. 1648, 1661 (2021) (reasoning that “breath-
taking” scope “underscores the implausibility of the Govern-
ment’s interpretation”).
Instead, I would give “corruptly” its long-standing mean-
ing. It requires a defendant to act “with an intent to procure an
unlawful benefit either for himself or for some other person.”
Marinello v. United States, 138 S. Ct. 1101, 1114 (2018)
(Thomas, J., dissenting) (cleaned up). The defendant must “not
only kn[ow] he was obtaining an ‘unlawful benefit,’” it must
also be “his ‘objective’ or ‘purpose.’” Id. Read that way,
2
“corruptly” makes sense of (c)(2)’s place in the statutory
scheme and avoids rendering it a vague and far-reaching crim-
inal provision.
Those conclusions follow from five points, which I explain
in the five sections below.
• The term “corruptly” has a long-established meaning at
common law and in federal statutes.
• Congress often incorporates a legal term’s established
meaning in new legislation, and it did so when it used
“corruptly” in § 1512(c).
• The statutory scheme confirms that “corruptly” carries
its long-established meaning in § 1512(c).
• That interpretation avoids vagueness and ensures that
the statute does not have a breathtaking scope.
• Though the meaning of “corruptly” is narrow, the in-
dictments should still be upheld.
I.
“Corruptly” Has a Long-Established Meaning at Com-
mon Law and in Federal Statutes
The term “corruptly” likely originated as the mental state
for common-law corruption crimes like extortion and bribery.
It has since been used as a mental state in federal statutes cov-
ering bribery and obstruction of justice. In both its common-
law and codified forms, “corruptly” has almost always required
3
proof that a defendant acted with an intent to procure an unlaw-
ful benefit.1
A. Common Law
The corrupt state of mind has its roots in English extortion
and bribery cases. The common law frequently employed the
term “corruptly” to mean “an unlawful purpose, that is, as the
purpose to give, take, receive, or accept, anything of value that
is illegal or inappropriate.” Jeremy N. Gayed, “Corruptly”:
Why Corrupt State of Mind Is An Essential Element for Hobbs
Act Extortion under Color of Official Right, 78 Notre Dame L.
Rev. 1731, 1748 (2003). Common-law judges looked to a de-
fendant’s corrupt mental state to differentiate “between licit
1
Though the district court did not reach the meaning of “corruptly,”
we have no choice. As I will explain in Sections III and IV, my vote
to uphold the indictments depends on it. Plus, the issue is squarely
before us. The Government admits that the Defendants raised the
issue before the district court. Oral Arg. Tr. 16 (“The definition of
corruptly, some defendants have challenged it. In fact, the defend-
ants here challenged it below.”); see, e.g., Second Supplement to
Motion to Dismiss at 9-16, United States v. Miller, No. 1:21-cr-
00119-CJN, D.I. 59 (Nov. 15, 2021). The Government offered its
proposed definition of the term in its briefing here. Appellant’s Br.
48-51. The Defendants responded with their own definition. Appel-
lees’ Br. 32-36. Then, we discussed the term’s meaning with them
at oral argument for around fifteen minutes. Oral Arg. Tr. 7-16, 41-
44, 66-69. At argument, the Government asked us to “construe”
“corruptly” “consistent with [its] plain language.” Id. at 18. The
Defendants told us that “we need to interpret corruptly in this case”
and that “the Court has sufficient briefing here.” Id. at 42-43. And
we have benefited from the lengthy discussion of the issue by several
district judges in similar cases. See, e.g., United States v. Sandlin,
575 F. Supp. 3d 16, 29-34 (D.D.C. 2021) (Friedrich, J.); United
States v. Montgomery, 578 F. Supp. 3d 54, 80-85 (D.D.C. 2021)
(Moss, J.).
4
and illicit conduct” in a way that “limited the scope of extortion
and bribery in a principled manner.” Id. at 1736; see, e.g., R v.
Young & Pitts (1758) 97 Eng. Rep. 447, 450.
That was no mean feat in Tudor and Stuart England. Back
then, the English legal system “lack[ed] well-defined rules
about what . . . officials may take or request” from the public.
Gayed, supra, at 1736. Officials were allowed to finance their
own salaries by charging fees to the public. Id. at 1735-38. But
they could not knowingly charge more than the customary
amount. Id. So even if an official overcharged, his guilt de-
pended on his state of mind. Id.
Thus, in extortion cases, courts considered whether an of-
ficial had exacted an unlawful benefit — that is, a benefit to
which he knew he was unentitled. Id. For example, in R v.
Seymour, three justices of the peace were convicted for charg-
ing ten times the customary amount for a license to run an ale-
house. (1740) 87 Eng. Rep. 1305, 1306. The “extraordinary
manner” of the justices’ overcharging, plus the fact that they
had charged the proper rate in other instances, indicated that
they had knowingly abused the “discretionary power” that was
“reposed in [them] by the Legislature.” Id.; see also R v. Wil-
liams (1762) 97 Eng. Rep. 851 (officials were liable “not for
the mere refus[al] to grant the licenses . . . but for the corrupt
motive of such refusal; . . . because the persons applying for
them would not give their votes for members of Parliament as
the [officials] would have had them”).
Similarly, in bribery cases, the mere payment of a fee to
an official for a benefit was not enough — the bribe payer had
to know he was seeking an unlawful benefit. One striking ex-
ample is R v. Vaughan (1769) 98 Eng. Rep. 308, 308-10.
Vaughan wanted a Supreme Court (of Jamaica) clerkship. So
he bribed the Duke of Grafton. The court noted that it was not
5
“criminal or dishonourable, to sell offices which are saleable.”
Id. at 310. But Vaughan was still liable for bribery because the
clerkship was under the control of the King, not the Duke. Id.
So Vaughan had intended the payment “to tempt the duke to
betray [the King’s] trust, by giving his advice to the King un-
der . . . a corrupt motive.” Id.; see also Gayed, supra, at 1746-
47 (discussing Vaughan).2
When early state courts adopted the common law, they
shared their English cousins’ understanding that bribery and
extortion required an intent to procure an unlawful benefit. The
Supreme Court of Pennsylvania thus refused to hold an official
liable for charging concededly “illegal” fees because he lacked
“criminal intentions.” Respublica v. Hannum, 1 Yeates 71, 74
(Pa. 1791). And in Cleaveland v. State, the Supreme Court of
Alabama rejected the argument that an official could be held
liable for making unlawful charges without knowledge that
they were illegal. 34 Ala. 254, 259 (1859). To be liable, it
held, officers must “intentionally charge and take fees which
they know at the time they are not authorized to collect.” Id.That purpose “constitutes the corrupt intent which is the es-
sence of the offense.” Id.; see also Runnells v. Fletcher, 15
Mass. 525, 526 (1819) (officer must “willfully and corruptly
2
Later treatises show the stability of the mental state required for
corruption crimes at common law. In 1897 — more than 100 years
after Seymour, Williams, and Vaughan — one treatise explained that
extortion was the purposeful “taking of unlawful fees” and that it was
a complete defense if the official “had ground to believe and did be-
lieve that he was justified in taking the fees he received.” 2 Emlin
McClain, Treatise on the Criminal Law as Now Administered in the
United States 130 (1897); see also Clark & Marshall, A Treatise on
the Law of Crimes 795 (6th ed. 1958) (“To constitute extortion at
common law, and very generally under the statutes, there must be a
corrupt intent.”) (emphasis added); Gayed, supra, at 1743-44 (col-
lecting treatises).
6
demand[ ] and receive[ ] other or greater fees than the law al-
lows”).3
To sum up, the “corrupt” state of mind developed in classic
crimes of corruption, like extortion and bribery. And common-
law courts almost always treated the intent to procure an un-
lawful benefit — that is, the intent to procure a benefit which
the offender knows is unlawful — as a crucial part of the “clus-
ter of ideas” that defined it as a unique mental state. See Moris-
sette v. United States, 342 U.S. 246, 263 (1952) (legal “terms
of art” often carry a “cluster of ideas” from “centuries of prac-
tice”).
B. Federal Statutes
The “corrupt” state of mind eventually made its way from
the common law to federal statutes. Just like the common law,
those statutes almost always require proof that the defendant
acted with an intent to procure an unlawful benefit.
1. Bribery Statutes
Unsurprisingly, “corruptly” appears in federal bribery stat-
utes. For example, 18 U.S.C. § 201 — titled “Bribery of public
officials and witnesses” — imposes penalties on anyone who
3
Modern legal dictionaries confirm that understanding. See, e.g.,
Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) (“As used
in criminal-law statutes, corruptly usu[ally] indicates a wrongful de-
sire for pecuniary gain or other advantage.”). As do some state stat-
utes. See, e.g., California Penal Code § 7(3) (“The word ‘corruptly’
imports a wrongful design to acquire or cause some pecuniary or
other advantage to the person guilty of the act or omission referred
to, or to some other person.”); 21 Oklahoma Stat. § 94 (“The term
‘corruptly’ . . . imports a wrongful design to acquire some pecuniary
or other advantage . . . .”).
7
“corruptly gives, offers or promises anything of value to any
public official . . . with intent . . . to influence any official act.”
18 U.S.C. § 201(b)(1)(A); see also 18 U.S.C. § 215(a) (crimi-
nalizing “corruptly . . . promis[ing] anything of value . . . with
the intent to influence” a transaction with a financial institu-
tion).
Courts have interpreted “corruptly” in § 201 to require an
intent to secure an unlawful benefit. There, “corruptly” means
to act with a particular kind of “unlawful purpose” — a defend-
ant must intend that the bribe be part of a “quid pro quo.”
United States v. Tomblin, 46 F.3d 1369, 1379-80 (5th Cir.
1995). Bribes must be “made with criminal intent that the ben-
efit be received by the official as a quid pro quo for some offi-
cial act, pattern of acts, or agreement to act favorably to the
donor when necessary.” United States v. Head, 641 F.2d 174,
180 (4th Cir. 1981) (cleaned up); see also United States v.
Terry, 707 F.3d 607, 612 (6th Cir. 2013) (the “agreement” be-
tween a bribe payer and a bribe receiver “must include a quid
pro quo — the receipt of something of value in exchange for
an official act”) (cleaned up).
In other words, the unlawful purpose required under § 201
is an intent to obtain an illegal benefit. A bribe payer must
intend to secure a benefit from the bribe taker and vice versa.
2. Obstruction-of-Justice Statutes
“Corruptly” is also used as a mental state in federal ob-
struction-of-justice statutes.
In some obstruction statutes, courts have interpreted “cor-
ruptly” to expressly require an intent to procure an unlawful
benefit. For example, 26 U.S.C. § 7212(a) imposes penalties
on anyone who “corruptly” obstructs the administration of the
8
Internal Revenue Code. There is “a consensus among the
courts of appeals that ‘corruptly,’ as used in section 7212(a),
means acting with an intent to procure an unlawful benefit ei-
ther for the actor or for some other person.” United States v.
Floyd, 740 F.3d 22, 31 (1st Cir. 2014) (collecting cases); see
also Marinello v. United States, 138 S. Ct. 1101, 1108 (2018)
(not disputing the government’s argument that “corruptly” in
§ 7212(a) means “the specific intent to obtain an unlawful ad-
vantage”) (cleaned up).
In other obstruction statutes, the connection between “cor-
ruptly” and the defendant’s intent to procure an unlawful ben-
efit is implicit. Take 18 U.S.C. § 1503, which imposes penal-
ties on anyone who “corruptly” obstructs a federal juror or ju-
dicial officer. 18 U.S.C. § 1503(a). Courts have interpreted
“corruptly” there to mean an “improper purpose” — with no
mention of an intent to secure an unlawful benefit. See, e.g.,
United States v. Fasolino, 586 F.2d 939, 941 (2d Cir. 1978)
(cleaned up); United States v. Haas, 583 F.2d 216, 220 (5th Cir.
1978) (“‘corruptly’ means for an improper motive”); but see
United States v. Brenson, 104 F.3d 1267, 1281 (11th Cir. 1997)
(concluding that “corruptly” in § 1503 requires an intent to pro-
cure an unlawful benefit).
But that is because all violators of § 1503 are nearly guar-
anteed to gain an unlawful benefit. An attempt to obstruct a
juror is almost always an attempt to secure a favorable verdict.
18 U.S.C. § 1503. So there is no need, in § 1503, to expressly
require proof of an intent to secure an unlawful benefit. A gen-
eral improper purpose is enough.
Justice Scalia said as much in United States v. Aguilar, 515
U.S. 593, 616-17 (1995) (Scalia, J., concurring). Though he
recognized that “corruptly” historically “denotes an act done
with an intent to give some advantage inconsistent with official
9
duty,” he noted that under § 1503 “[a]cts specifically intended
to influence, obstruct, or impede, the due administration of jus-
tice . . . are necessarily corrupt.” Id. (cleaned up).
Judge Silberman made the same point when he interpreted
the word “corruptly” in a closely related provision, 18 U.S.C.
§ 1505. United States v. North, 910 F.2d 843, 939-46 (D.C.
Cir. 1990) (Silberman, J., concurring in part). He stopped short
of accusing other courts of erring when they defined “cor-
ruptly” to mean an “intent to obstruct,” but only because “those
opinions . . . express the view that any endeavor to obstruct a
judicial proceeding is inherently . . . corrupt.” Id. at 940-41.
To avoid confusion, he would have defined “corruptly” to re-
quire inquiry into “whether the defendant was attempting to se-
cure some advantage for himself or for others that was im-
proper.” Id. at 944.4
But when an obstruction provision sweeps up a broad
range of conduct, it is problematic to leave implicit the long-
established requirement that a defendant acts “corruptly” only
when he seeks to secure an unlawful benefit.
That explains why courts have interpreted “corruptly” in
26 U.S.C. § 7212(a) — the tax obstruction statute — to ex-
pressly require an intent to procure an unlawful benefit. For
example, in United States v. Reeves, the Fifth Circuit refused
to interpret “corruptly” in § 7212(a) to require only an “im-
proper motive,” as it did in § 1503. 752 F.2d 995, 998 (5th Cir.
1985). It reasoned that under § 1503, obstructing a juror “will
4
Congress has since amended the criminal code to give “corruptly”
a unique definition in § 1505, requiring only “an improper purpose.”
See 18 U.S.C. § 1515(b). But as Judge Silberman pointed out, vio-
lating § 1505 may be “inherently . . . corrupt.” North, 910 F.2d at
941.
10
almost necessarily result in an improper advantage to one side
in the case.” Id. at 999. By contrast, § 7212(a)’s prohibition
on obstructing the administration of the tax code covers con-
duct that does “not concern a proceeding in which a party
stands to gain an improper advantage.” Id. So in § 7212(a),
“corruptly” should be read to include “an intent to secure an
unlawful advantage or benefit.” Id. at 1001. That way,
§ 7212(a) is “substantially similar in result to” other crimes in
which the term “corruptly” appears. Id.
The lesson from the obstruction-of-justice caselaw is clear.
Either explicitly or implicitly, “corruptly” requires an intent to
procure an unlawful benefit. And the more conduct an obstruc-
tion statute reaches, the more vigilantly we must apply the
long-established (and relatively narrow) meaning of “cor-
ruptly.” Otherwise we risk giving criminal provisions an im-
plausibly broad scope, and we reduce “corruptly” to a synonym
for another established mental state — “willfully.” See Mari-
nello, 138 S. Ct. at 1114 (Thomas, J., dissenting) (distinguish-
ing “willfully” and “corruptly”).5
5
The dissenting opinion says a defendant can act “corruptly” only if
the benefit he intends to procure is a “financial, professional, or ex-
culpatory advantage.” Dissenting Op. 35. I am not so sure. Cf.
United States v. Townsend, 630 F.3d 1003, 1010-11 (11th Cir. 2011);
United States v. Girard, 601 F.2d 69, 70 (2d Cir. 1979); Trushin v.
State, 425 So.2d 1126, 1130-32 (Fla. 1982). Besides, this case may
involve a professional benefit. The Defendants’ conduct may have
been an attempt to help Donald Trump unlawfully secure a profes-
sional advantage — the presidency. Like the clerkship that Samuel
Vaughan corruptly sought hundreds of years ago, the presidency is a
coveted professional position. See Vaughan (1769) 98 Eng. Rep. at
308-10; but see Telegram from William T. Sherman to Republican
National Convention (1884) (“I will not accept if nominated, and will
not serve if elected.”).
11
II.
Congress Incorporated the Established Meaning of “Cor-
ruptly” in § 1512(c)
That brings us back to the statute at issue in this case: 18
U.S.C. § 1512(c)(2). Recall that it penalizes a person who
“corruptly . . . obstructs, influences, or impedes any official
proceeding.” 18 U.S.C. § 1512(c)(2) (emphasis added). Our
task is to interpret the words of the statute, including “cor-
ruptly,” “consistent with their ordinary meaning at the time
Congress enacted the statute.” See Wisconsin Central Ltd. v.
United States, 138 S. Ct. 2067, 2070 (2018) (cleaned up).
Here, the long-established meaning of “corruptly” at com-
mon law and in federal statutes makes our task easier. It is a
“cardinal rule” of statutory interpretation that when “Congress
borrows terms of art” with a meaning elucidated during “cen-
turies of practice,” it adopts the “cluster of ideas that were at-
tached to each borrowed word.” Molzof v. United States, 502
U.S. 301, 307 (1992) (quoting Morissette v. United States, 342
U.S. 246, 263 (1952)).
That rule has force where, as here, “Congress used an un-
usual term [with] a long regulatory history in [a particular] con-
text.” George v. McDonough, 142 S. Ct. 1953, 1959 (2022).
True, the Defendants were allegedly trying to secure the presi-
dency for Donald Trump, not for themselves or their close associates.
But the beneficiary of an unlawful benefit need not be the defendant
or his friends. Few would doubt that a defendant could be convicted
of corruptly bribing a presidential elector if he paid the elector to cast
a vote in favor of a preferred candidate — even if the defendant had
never met the candidate and was not associated with him. See Oral
Arg. Tr. 18-19, Chiafalo v. Washington, 140 S. Ct. 2316 (2020) (dis-
cussing the fear that electoral college voters might one day be
bribed).
12
From Tudor England to state courts to federal statutes, “cor-
ruptly” has almost always referred to a criminal intent to pro-
cure an unlawful benefit. Its “history . . . resolves any ambigu-
ity” about its meaning. Hall v. Hall, 138 S. Ct. 1118, 1125-28
(2018) (a word’s consistent use for 125 years meant that Con-
gress “carried forward” its meaning). So when Congress used
“corruptly” in § 1512(c), an ordinary, informed reader would
have understood it to mean what it had meant in similar con-
texts for several hundred years.
True, that interpretation is narrower than the colloquial
meaning of “corruptly” in other contexts. See Lead Op. 17.
But “[s]tatutory language need not be colloquial.” United
States v. Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J., concur-
ring). Rather, when “Congress employs a term of art obviously
transplanted from another legal source, it brings the old soil
with it.” George, 142 S. Ct. at 1959 (cleaned up).6
If Congress had wanted to disavow the “old soil” attached
to the term “corruptly,” it could have. Id. In fact, it expressly
assigned an unusually broad definition to “corruptly” for
6
The lead opinion cites Arthur Andersen LLP v. United States, 544
U.S. 696, 705 (2005), as evidence that “corruptly” may carry its col-
loquial meaning in § 1512. Lead Op. 17. But the Court in Arthur
Andersen merely decided that “corruptly” requires “consciousness of
wrongdoing” and noted that “[t]he outer limits of this element need
not be explored here because the jury instructions at issue simply
failed to convey the requisite consciousness of wrongdoing.” 544
U.S. at 706.
13
§ 1505. See 18 U.S.C. § 1515(b) (defining “corruptly . . . [a]s
used in section 1505”). But it has not done so for § 1512(c).7
Thus, “corruptly” in § 1512(c) means to act “with an intent
to procure an unlawful benefit either for [oneself] or for some
other person.” Marinello v. United States, 138 S. Ct. 1101,
1114 (2018) (Thomas, J., dissenting) (cleaned up). It “requires
proof that the defendant not only knew he was obtaining an
‘unlawful benefit’ but that his ‘objective’ or ‘purpose’ was to
obtain that unlawful benefit.” Id. And that benefit may be un-
lawful either because the benefit itself is not allowed by law, or
because it was obtained by unlawful means. Id.III.
The Statutory Scheme Confirms that Congress Intended
“Corruptly” to Have Its Established Meaning
The “words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (cleaned
up). Giving “corruptly” its long-established meaning makes
sense of § 1512’s statutory scheme. A broader reading does
not.
Start with the structure of § 1512. Titled “[t]ampering
with a witness, victim, or an informant,” it lists obstruction of-
fenses of varying seriousness. Subsection (a) prohibits killing
or otherwise using physical force with the intent to prevent
7
For § 1505, Congress has defined “corruptly” to require only “an
improper purpose.” 18 U.S.C. § 1515(b). But, as discussed earlier,
see supra n.4, it may still be the case that violating § 1505 with an
improper purpose is “inherently . . . corrupt,” United States v. North,
910 F.2d 843, 941 (D.C. Cir. 1990) (Silberman, J., concurring in
part).
14
attendance at an official proceeding. Subsection (b) criminal-
izes “knowingly us[ing] intimidation, threat[s], or corrupt[ ]
persuas[ion]” to “influence, delay, or prevent” testimony at an
official proceeding. And subsection (d) penalizes intentional
harassment to dissuade attendance or testimony at an official
proceeding.
Subsection (c) was a late-game addition to the statute.
Congress enacted it to strengthen existing obstruction-of-jus-
tice laws in the wake of the Enron accounting-fraud scandal.
See Yates v. United States, 574 U.S. 528, 532-36 (2015) (dis-
cussing the history of the 2002 Sarbanes-Oxley Act). That sub-
section has two parts: (c)(1) prohibits “corruptly” altering or
destroying a “document, or other object . . . with the intent to
impair the object’s integrity or availability for use in an official
proceeding”; (c)(2) is a residual clause, making it an offense to
“corruptly” “otherwise obstruct[ ], influence[ ], or impede[ ]
any official proceeding.”
Subsection (c)(2)’s inconspicuous place within the statu-
tory scheme suggests that it is an odd place for Congress to hide
a far-reaching criminal provision. See Whitman v. American
Trucking Associations, Inc., 531 U.S. 457, 468 (2001). As the
district court put it, “a reader would not expect to find in a stat-
ute that is otherwise narrowly (and consistently) tailored a
criminal prohibition of exceptionally broad scope.” United
States v. Miller, 589 F. Supp. 3d 60, 73 (D.D.C. 2022). Yet
that is the result if (c)(2) does not have a carefully-tailored men-
tal state.
By contrast, giving “corruptly” its long-standing meaning
addresses those concerns. Subsection (c)(2) is not an elephant
in a mousehole because it is no elephant. Cf. Whitman, 531
U.S. at 468 (“Congress . . . does not . . . hide elephants in
mouseholes.”). Even though (c)(2) has a broad act
15
element — there are many ways to obstruct, influence, or im-
pede an official proceeding — its mental state keeps it in
check: A defendant is liable only if he intends to procure an
unlawful benefit.
The need for a defendant to intend to procure an unlawful
benefit means that § 1512(c)(2) will not cover the “large swaths
of advocacy, lobbying and protest” that it otherwise might. Cf.
Dissenting Op. 33. A defendant must intend to obtain a benefit
that he knows is unlawful. See Marinello v. United States, 138
S. Ct. 1101, 1114 (2018) (Thomas, J., dissenting). Thus, some-
one who believes that picketing outside of a Justice’s home is
a legitimate form of protest may be guilty of a crime. See 18
U.S.C. § 1507. But even if the protester intended to influence
the Justice’s vote in an upcoming case, he would not be guilty
of “corruptly . . . influenc[ing] . . . an official proceeding” un-
less he knew that his picket was unlawful. 18 U.S.C
§ 1512(c)(2).
To illustrate how “corruptly” limits the reach of
§ 1512(c)(2), consider how it might apply to a hypothetical ri-
oter on January 6th. This rioter joined the throng outside Con-
gress because he was angry at the nation’s elites. He saw the
riot as an opportunity to display his bravado. Though likely
guilty of other crimes, he did not act “corruptly” under (c)(2)
because he did not intend to procure a benefit by obstructing
the Electoral College vote count. That rioter may not be repre-
sentative of most rioters on January 6th. But in every case, the
Government will need to prove at trial whether each defendant
acted “corruptly” in a way that my hypothetical rioter did not.
Plus, the long-established definition of “corruptly” does
more than just narrow (c)(2)’s reach. It also helps make sense
of its place as a residual clause within an obstruction-of-justice
statute. Obstruction provisions generally deal with activities
16
that secure an unlawful advantage. United States v. Aguilar,
515 U.S. 593, 616-17 (1995) (Scalia, J., concurring); United
States v. Reeves, 752 F.2d 995, 999 (5th Cir. 1985). Giving
“corruptly” its long-established meaning ensures that (c)(2) is
no different, thus giving it an essential link to its neighboring
provisions.
That reading of “corruptly” also reduces the degree of
overlap between (c)(2) and other provisions within § 1512. See
Miller, 589 F. Supp. 3d at 73 (arguing that a broad reading of
§ 1512(c)(2) would make the rest of § 1512 “unnecessary”).
For example, a defendant who “intentionally harasses another
person and thereby hinders . . . any person from . . . attending
or testifying in an official proceeding,” 18 U.S.C. § 1512(d)(1),
might satisfy the act elements of both subsection (d)(1) and
subsection (c)(2) (obstructing an official proceeding). But he
would not necessarily have the mental state for both crimes.
Whereas (d)(1) looks only to whether the defendant “intention-
ally harasse[d] another person,” (c)(2) requires an intent to pro-
cure an unlawful benefit. That latter mental state is considera-
bly narrower and helps explain a large sentencing disparity be-
tween both provisions. Compare 18 U.S.C. § 1512(c) (“not
more than 20 years”) with § 1512(d) (“not more than 3 years”);
see also United States v. North, 910 F.2d 843, 941 (D.C. Cir.)
(Silberman, J., concurring in part) (it “makes no sense to con-
strue” the term “corruptly” to “mean only that one must do [an
act] with . . . intent”). Of course, the mental states may some-
times overlap, but a degree of “redundancy” is common in the
criminal law. Marinello, 138 S. Ct. at 1114 (Thomas, J., dis-
senting).
The dissent has a different approach to addressing the
structural issues raised by a broad interpretation of
§ 1512(c)(2). Rather than focusing on (c)(2)’s mental state, the
dissent’s solution is to confine the act element “to conduct that
17
impairs the integrity or availability of evidence.” Dissenting
Op. 38. Unlike the district court, which said (c)(2) just covers
physical evidence, the dissent seems to acknowledge that im-
pairment of any evidence could suffice, including witness tes-
timony. Compare Miller, 589 F. Supp. 3d at 71, 78 with Dis-
senting Op. 21. Though the dissent admits that its interpreta-
tion does not resolve every structural problem, it claims that it
creates “substantially less” surplusage. Dissenting Op. 23.
With respect, I disagree. The dissent’s reading of
§ 1512(c)(2) runs into many of the same surplusage problems
that it accuses the lead opinion’s interpretation of creating.
Start with § 1512(c). On the dissent’s reading, (c)(1) is
surplusage. That’s because the dissent’s interpretation of
(c)(2)’s act element covers the conduct prohibited by (c)(1):
“alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record,
document, or other object.” 18 U.S.C.§ 1512(c)(1).
Next zoom out and consider the rest of § 1512. Again, the
dissent’s reading creates significant surplusage. Because its in-
terpretation of (c)(2) covers “conduct that impairs the integrity
or availability of evidence,” Dissenting Op. 38, it sweeps up
the same conduct prohibited by the following provisions:
• Subsections 1512(a)(1)(A) and (a)(1)(B), which pro-
hibit killing a person “with intent to . . . prevent the at-
tendance or testimony of any person . . . [or] prevent the
production of a record, document, or other object, in an
official proceeding.”
• Subsection 1512(b)(1), which criminalizes “us[ing] in-
timidation, threat[s], or corruptly persuad[ing] another
person, with intent to . . . influence, delay, or prevent
the testimony of any person in an official proceeding.”
18
• Subsection 1512(d)(1), which penalizes “intentionally
harass[ing] another person and thereby hinder[ing] . . .
any person from . . . attending or testifying in an official
proceeding.”
That overlap creates odd outcomes. For instance, on the
dissent’s reading, anyone convicted of harassing and hindering
a witness under (d)(1) could also be convicted under
(c)(2) — despite the 17-year sentencing disparity between the
two. Compare 18 U.S.C. § 1512(c) (“not more than 20 years”)
with § 1512(d) (“not more than 3 years”).
By contrast, my narrow reading of (c)(2)’s mental state
avoids some of the overlap with those provisions. Unlike
(c)(2), those provisions all require a type of specific intent. 18
U.S.C. § 1512(a)(1) (intent to obstruct), (a)(2) (same), (b)
(knowingly using intimidation with intent to obstruct), (d) (in-
tent). By contrast, (c)(2) requires a defendant to act “cor-
ruptly” — a much narrower mental state than “intent” or
“knowledge.” See North, 910 F.2d at 940-41 (Silberman, J.,
concurring in part).
True, my definition of “corruptly” does not avoid surplus-
age entirely. As the dissent notes, failing to limit § 1512(c)’s
act element to evidence impairment would render parts of
§ 1503 (corruptly influencing or injuring a juror or court of-
ficer) and § 1505 (corruptly obstructing proceedings pending
before Congress or executive agencies) superfluous. Dissent-
ing Op. 20. But again, a degree of “redundancy” is common in
the criminal law. Marinello, 138 S. Ct. at 1114 (Thomas, J.,
dissenting). And the canon avoiding “surplusage is strongest
when an interpretation would render superfluous another part
of the same statutory scheme.” Dissenting Op. 17 (quoting
19
Marx v. General Revenue Corp., 568 U.S. 371, 386 (2013))
(emphasis added).
Though no interpretation of § 1512(c) fixes every struc-
tural issue, the long-established definition of “corruptly” fixes
many of the surplusage issues within § 1512. The dissent’s in-
terpretation of (c)(2)’s act element does not.8
IV.
That Interpretation Avoids Vagueness and Ensures That
§ 1512(c)(2) Does Not Have a Breathtaking Scope
An innovatively broad definition of “corruptly” could raise
serious concerns that § 1512(c)(2) is a vague provision with a
breathtaking scope. For instance, if “corruptly” requires proof
only that a defendant acted with a “wrongful purpose,” then
(c)(2) might criminalize many lawful attempts to “influence[ ]”
congressional proceedings — protests or lobbying, for exam-
ple. Appellees’ Br. 34 (quoting § 1512(c)(2)).
Reading “corruptly” to require more than a “wrongful pur-
pose” avoids that problem. A lobbyist who persuades a con-
gressman to ask hard questions at a committee hearing has in-
fluenced the proceeding, but he has not sought to gain an un-
lawful benefit. Cf. United States v. North, 910 F.2d 843, 941-
42 (D.C. Cir. 1990) (Silberman, J., concurring in part) (because
“corruptly” limited the reach of § 1505, it prevented the statute
from “convert[ing] all of Washington’s office buildings into
prisons”). “Vigorously apply[ing]” (c)(2)’s mental-state pro-
vision thus “protect[s] criminal defendants” by making it
8
As I have explained, I disagree with the dissenting opinion’s inter-
pretation of § 1512(c)(2)’s act element. But I do not join footnote 8
of the lead opinion, which explains its own reasons for disagreeing
with the dissent.
20
harder for law abiding people to unwittingly commit a federal
crime. Wooden v. United States, 142 S. Ct. 1063, 1076 (2022)
(Kavanaugh, J., concurring) (mental-state requirements “are
‘as universal and persistent in mature systems of law as belief
in freedom of the human will and a consequent ability and duty
of the normal individual to choose between good and evil’”
(quoting Morissette v. United States, 342 U.S. 246, 250
(1952))).
Finally, reading “corruptly” to impose a stringent mental
state heeds the “unmistakable” message from the Supreme
Court that “[c]ourts should not assign federal criminal statutes
a ‘breathtaking’ scope when a narrower reading is reasonable.”
United States v. Dubin, 27 F.4th 1021, 1041 (5th Cir. 2022)
(Costa, J., dissenting) (quoting Van Buren v. United States, 141
S. Ct. 1648, 1661 (2021)). “In the last decade, it has become
nearly an annual event for the Court to give this instruction.”
Id.9 We should not make the Court repeat itself by refusing to
give “corruptly” its narrow, long-established meaning here.
V.
The Indictments Should be Upheld
Even under the proper, narrow reading of “corruptly,” the
indictments should be upheld. Each contains “the essential
facts constituting the offense charged.” Fed. R. Crim. P.
7(c)(1). That’s because they allege that the Defendants
9
See Van Buren, 141 S. Ct. at 1661; Kelly v. United States, 140 S.
Ct. 1565, 1568 (2020); Marinello v. United States, 138 S. Ct. 1101,
1107 (2018); McDonnell v. United States, 579 U.S. 550 (2016); Yates
v. United States, 574 U.S. 528, 540 (2015) (plurality op.); Bond v.
United States, 572 U.S. 844, 863 (2014); Skilling v. United States,
561 U.S. 358, 410-11 (2010); Arthur Andersen LLP v. United States,
544 U.S. 696, 703 (2005).
21
“corruptly obstruct[ed], influence[d], and impede[d] an official
proceeding, that is, a proceeding before Congress, specifically,
Congress’s certification of the Electoral College vote.” JA 444
(Fischer); see also JA 55 (Lang); JA 85-86 (Miller).
Of course, the Government must prove its allegations at
trial. It must show that the Defendants “corruptly” obstructed
the certification of the Electoral College vote. That is not out-
side the realm of possibility. For example, it might be enough
for the Government to prove that a defendant used illegal
means (like assaulting police officers) with the intent to pro-
cure a benefit (the presidency) for another person (Donald
Trump).
* * *
When used as a criminal mental state, “corruptly” is a term
of art that requires a defendant to act with “an intent to procure
an unlawful benefit either for himself or for some other per-
son.” Marinello v. United States, 138 S. Ct. 1101, 1114 (2018)
(Thomas, J., dissenting) (cleaned up). That meaning has been
recognized in similar contexts by Justice Thomas, Justice
Scalia, and Judge Silberman. Id.; United States v. Aguilar, 515
U.S. 593, 616-17 (1995) (Scalia, J., concurring); United States
v. North, 910 F.2d 843, 939-46 (D.C. Cir. 1990) (Silberman, J.,
concurring in part); see also United States v. Floyd, 740 F.3d
22, 31 (1st Cir. 2014) (collecting cases from nine other cir-
cuits). And in this context, for § 1512(c), the statutory text and
structure confirm that “corruptly” has its long-established
meaning. Reading it that way reconciles (c)(2) with the statu-
tory scheme, avoids vagueness, and heeds the Supreme Court’s
warning to beware of interpretations that impose onto criminal
statutes a “breathtaking” scope. Van Buren v. United States,
141 S. Ct. 1648, 1661 (2021).
22
Because I read “corruptly” as courts have read it for hun-
dreds of years — and only because I read it that way — I concur
in the Court’s judgment.10
10
In other words, my reading of “corruptly” is necessary to my vote
to join the lead opinion’s proposed holding on “obstructs, influences,
or impedes” an “official proceeding.” 18 U.S.C. § 1512(c)(2). If I
did not read “corruptly” narrowly, I would join the dissenting opin-
ion. That’s because giving “corruptly” its narrow, long-established
meaning resolves otherwise compelling structural arguments for af-
firming the district court, as well as the Defendants’ vagueness con-
cerns. See supra Sections III & IV.
My reading of “corruptly” may also be controlling, at least if a fu-
ture panel analyzes this splintered decision under Marks v. United
States — the test for deciding the holding of a fractured Supreme
Court judgment. 430 U.S. 188, 193 (1977); see also Binderup v. At-
torney General, 836 F.3d 336, 356 (3d Cir. 2016) (en banc) (applying
Marks to determine the “law of [the] Circuit”).
Where, as here, “no single rationale explaining the result enjoys
the assent of [a majority]” — and again, in my view, the rationale in
the lead opinion is not enough to uphold the indictments — Marks
says the court’s holding is the “position taken” by the judge “who
concurred in the judgments on the narrowest grounds.” 430 U.S. at
193. The narrowest ground is a “logical subset of other, broader
opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991). It
is a “middle ground” that “produce[s] results that” accord with “a
subset of the results” intended by each opinion. United States v. Du-
vall, 740 F.3d 604, 610 (D.C. Cir. 2013) (Kavanaugh, J., concurring
in denial of rehearing en banc).
That describes my position here. I read (c)(2) to cover only some
of the conceivable defendants the lead opinion might allow a court
to convict. So my opinion is a “logical subset of [an]other, broader
opinion[ ].” Id. (cleaned up). In contrast, the lead opinion suggests
three plausible readings, including mine. Lead Op. 17-18. It then
says the Defendants’ alleged conduct is sufficient “[u]nder all those
formulations.” Id. (emphasis added). Though the lead opinion says
23
I also join all but Section I.C.1 and footnote 8 of the lead
opinion.
elsewhere that it “takes no position on the exact meaning of ‘cor-
ruptly,’” it must take some position on it. Lead Op. 21 n.5. Without
taking a position, the lead opinion could not conclude, as it does, that
the indictments should be upheld.
Put differently, if a defendant is guilty under my approach, he will
be guilty under the lead opinion’s. But some of the defendants guilty
under the lead opinion’s approach will not be guilty under my ap-
proach. Mine is the “position taken” by the panel member “who con-
curred in the judgment[ ] on the narrowest grounds.” Marks, 430
U.S. at 193.
That is not to say that a future panel will apply Marks to this deci-
sion. I express no opinion about whether it should. Cf. Richard M.
Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1942, 1944 (2019)
(“the Marks rule has generated considerable confusion”). But a fu-
ture panel will need some rule to decide the holding of today’s frac-
tured decision, and the Marks rule would be an unsurprising choice.
Id. (“‘the Marks rule’ . . . has been used with increasing regularity”).
One last thing. To the extent it matters — and it doesn’t matter
under Marks — the lead opinion and the dissent do not agree about
(c)(2)’s mental state. Cf. Marks, 430 U.S. at 193 (looking to the
opinions of only those Justices “who concurred in the judgments on
the narrowest grounds”). Rather, the dissent expressly rejects the
lead opinion’s approach to “corruptly,” suggesting that it raises
“vagueness and overbreadth concerns.” See Dissenting Op. 33.
KATSAS, Circuit Judge, dissenting: This appeal turns on
how the two subsections of 18 U.S.C. § 1512(c) interact with
one another. The first subsection addresses the preservation of
physical evidence, by imposing criminal penalties on anyone
who corruptly “alters, destroys, mutilates, or conceals a record,
document, or other object” with an intent “to impair the
object’s integrity or availability for use in an official
proceeding.” Id. § 1512(c)(1). The second subsection is
broader and less precise, imposing the same penalties on
anyone who, acting corruptly, “otherwise obstructs, influences,
or impedes any official proceeding.” Id. § 1512(c)(2). The
question presented is whether the second subsection applies to
obstruction that bears no relationship to the specific acts of
spoliation covered by the first subsection.
The government reads section 1512(c) as reaching all acts
that corruptly obstruct or influence an official proceeding. In
its view, the catchall otherwise clause alone determines the
scope of the provision, and the preceding examples do nothing
to narrow it: If a person corruptly obstructs an official
proceeding by altering, destroying, mutilating, or concealing a
record, document, or other object, the first subsection applies.
And if a person corruptly obstructs an official proceeding in
any other way, the second subsection applies. Section 1512(c)
thus reduces to a single provision criminalizing any act that
corruptly obstructs an official proceeding.
In my view, the government’s interpretation is mistaken.
For one thing, it dubiously reads otherwise to mean “in a
manner different from,” rather than “in a manner similar to.”
For another, it reads the catch-all provision in subsection (c)(2)
to render ineffective the longer, more grammatically complex
list of examples in subsection (c)(1), which is inconsistent with
normal linguistic usage and with several canons reflecting it.
The government’s reading is also hard to reconcile with the
structure and history of section 1512, and with decades of
precedent applying section 1512(c) only to acts that affect the
2
integrity or availability of evidence. Moreover, the
government’s reading makes section 1512(c) implausibly
broad and unconstitutional in a significant number of its
applications. Finally, if all of that were not enough, these
various considerations make the question presented at least
close enough to trigger the rule of lenity.
Because my colleagues reject an evidence-focused
interpretation of section 1512(c) and instead adopt the
government’s all-encompassing reading, I respectfully dissent.
I
Joseph Fischer, Edward Lang, and Garret Miller allegedly
participated in the riot at the United States Capitol on January
6, 2021, including by assaulting police officers. Such conduct
would violate many criminal statutes. Among other offenses,
the government charged Fischer, Lang, and Miller with
assaulting federal officers, causing civil disorder, entering a
restricted building, and demonstrating inside the Capitol.
The government also charged them with obstructing an
official proceeding in violation of section 1512(c)(2). It argued
that section 1512(c) “comprehensively” prohibits the
obstruction of official proceedings, regardless of whether the
obstruction has any connection to the spoliation of evidence.
Gov’t Response to Defendants’ Joint Supp. Br., United States
v. Miller, No. 21-cr-119 (D.D.C.), ECF Doc. 63-1 at 6. On this
account, because the defendants wrongfully obstructed the
proceeding to certify the vote of the Electoral College for
President, they violated the provision.
The district court dismissed the section 1512(c) counts. It
reasoned that subsection (c)(2) could be read either as
prohibiting any act that obstructs an official proceeding or as a
residual clause reaching only obstructive acts similar to the
3
ones covered by subsection (c)(1). See United States v. Miller,
589 F. Supp. 3d 60, 67–72 (D.D.C. 2022). In choosing the
latter reading, the court explained that the former one would
make superfluous both subsection (c)(1) and the word
otherwise. Id. at 70. The court also concluded that the structure
and historical development of section 1512 support a narrower
reading, as does the rule of lenity. Id. at 66, 72–76.
The government appealed the dismissal. We have
jurisdiction under 18 U.S.C. § 3731. The operative question is
whether the government’s allegations, if proven, would permit
a jury to find that the defendants violated section 1512(c). See
United States v. Sampson, 371 U.S. 75, 76 (1962).
II
Section 1512(c) provides:
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a
record, document, or other object, or attempts to
do so, with the intent to impair the object’s
integrity or availability for use in an official
proceeding; or
(2) otherwise obstructs, influences, or impedes
any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more
than 20 years, or both.
Subsection (c)(2) consists of four elements. First are its
actus rei verbs—the defendant must obstruct, influence, or
impede. Second is the adverb otherwise, which qualifies the
verbs by indicating some relationship between the covered
4
obstruction and the acts prohibited by subsection (c)(1). Third
is the direct object—the defendant must obstruct an official
proceeding. Fourth is a mens rea requirement—in obstructing
an official proceeding, the defendant must act corruptly.
The question presented involves the actus reus—what
counts as otherwise obstructing, influencing, or impeding an
official proceeding. The literal meaning of the verbs is
undisputed: They are strikingly broad, sweeping in anything
that “hinders,” “affects the condition of,” or “has an effect on”
a proceeding. See Marinello v. United States, 138 S. Ct. 1101,
1106 (2018) (interpreting “obstruct” and “impede”); Influence,
Oxford English Dictionary, available at http://www.oed.com.
And the proceeding to certify the Electoral College vote plainly
qualified as an “official proceeding,” which the statute defines
to include “a proceeding before the Congress.” See 18 U.S.C.
§ 1515(a)(1). The dispute over the actus reus thus boils down
to the word otherwise.
In the analysis that follows, I will first show that the word
introduces a critical ambiguity about how subsections (c)(1)
and (c)(2) relate to each other. Then, I will explain why the
ambiguity is best resolved in favor of the defendants’ evidence-
focused interpretation. Of course, these inquiries overlap
considerably; the analysis of whether a proposed interpretation
is at least reasonable (which would make it not unambiguously
wrong) parallels the analysis of whether the interpretation is
correct. But because my colleagues place so much weight on
a contention that subsection (c)(2) unambiguously compels the
government’s interpretation, I will separately consider the
threshold question of ambiguity.
5
III
A
“In determining the meaning of a statutory provision, we
look first to its language, giving the words used their ordinary
meaning.” Lawson v. FMR LLC, 571 U.S. 429, 440 (2014)
(cleaned up). Yet we do not divorce isolated words and phrases
from their statutory context. Rather, “[c]ontext is a primary
determinant of meaning.” A. Scalia & B. Garner, Reading
Law: The Interpretation of Legal Texts 167 (2012); see United
States v. Briggs, 141 S. Ct. 467, 470 (2020) (“The meaning of
a statement often turns on the context in which it is made, and
that is no less true of statutory language.”). As a result, “it is a
fundamental principle of statutory construction (and, indeed, of
language itself) that the meaning of a word cannot be
determined in isolation, but must be drawn from the context in
which it is used.” Reno v. Koray, 515 U.S. 50, 56 (1995)
(cleaned up). As Justice Scalia emphasized: “Perhaps no
interpretive fault is more common than the failure to follow the
whole-text canon, which calls on the judicial interpreter to
consider the entire text, in view of its structure and of the
physical and logical relation of its many parts.” Scalia &
Garner, supra, at 167.
Despite the centrality of this whole-text canon, the
government urges us to consider nothing outside the four
corners of subsection (c)(2)—not the text of subsection (c)(1);
not the text of section 1512; and not the text of chapter 73 of
Title 18, which sets forth obstruction-of-justice offenses
including section 1512. According to the government,
otherwise unambiguously means “in a different way” or “in
another manner.” Otherwise, Black’s Law Dictionary (11th ed.
2019). So subsection (c)(1) prohibits acts that obstruct an
official proceeding by impairing the integrity or availability of
6
physical evidence, and subsection (c)(2) prohibits acts that
obstruct an official proceeding in any other manner. In other
words, section 1512(c) covers all acts that obstruct an official
proceeding. And the enumeration of specific obstructive acts
in subsection (c)(1) creates a housekeeping question whether
any individual act may be charged under subsection (c)(1) or
(c)(2). But the enumeration does nothing to restrict the overall
scope of section 1512(c) and its 20-year authorized sentence.
This argument has a neat reductionist logic. It can be
generalized as follows: an expression of the form “A, B, C, or
otherwise D”—where A, B, and C are examples of D—is
equivalent to “D” because the word “otherwise” picks up every
instance of D not already captured by A, B, or C. And so,
according to the government, section 1512(c) unambiguously
reduces to the words that follow otherwise. In this case,
because the defendants obstructed an official proceeding,
section 1512(c) applies. QED.
This logic oversimplifies. It misses the point that, in
ordinary English usage, the verbs preceding a residual
otherwise clause usually do help narrow its meaning. For
example, if a rule punished anyone who “punches, kicks, bites,
or otherwise injures” someone else, you would recognize that
the examples involve physical injury, and you would
understand that the residual term likewise involves a physical
injury. Further, you would do so even though the dictionary
defines the word injure to include reputational, financial, and
emotional injuries. Or consider a residual clause introduced by
the adjectival form other. If I claimed to love “lions, tigers,
giraffes, and other animals,” you would recognize that the
examples all involve large game. You would thus understand
that “animals” likely includes elephants, may include dogs, and
likely excludes mice. You would certainly not think that
“animals” unambiguously includes mice. And you would
7
deduce all this even though dictionary definitions of “animal”
would be no help in distinguishing among elephants, dogs, and
mice. In short, you would understand that what follows a
residual “other” or “otherwise” clause is likely similar (though
not identical) to the examples that precede it.
As these examples show, reducing a phrase of the form “A,
B, C, or otherwise D” to “D” will likely expand its meaning. If
the boundaries of “D” were readily ascertainable without
clarification, a speaker would simply say “D,” rather than using
a longer and clunkier formulation with examples and a residual
“otherwise” clause. Nobody refers to “letters that are P, S, X,
or otherwise in the English alphabet,” because we do not need
clarifying examples to understand which letters are in the
English alphabet. So, when speakers use a phrase like “A, B,
C, or otherwise D,” there is good reason to think that D is either
ambiguous (as in the “injures” example above) or likely to be
interpreted too broadly if not clarified by examples (as in the
case of my favorite “animals”). And this point about ordinary
usage is a textual one, for the goal of textualism is not to
explore the definitional possibilities for isolated words, but to
assess how “an ordinary speaker of English” would understand
the phrases that Congress has strung together. Comcast Corp.
v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009,
1015 (2020). On this last point, there should be widespread
agreement. Compare Lockhart v. United States, 577 U.S. 347,
351–52 (2016) (majority), with id. at 362 (Kagan, J.,
dissenting).
Not surprisingly, these linguistic points coincide with
several semantic canons of construction, which track how
speakers normally use English. I will have more to say about
the canons below, but for now here are three of them: First, the
canon against surplusage is a “cardinal principle of statutory
construction” that “we must give effect, if possible, to every
8
clause and word of a statute.” Williams v. Taylor, 529 U.S.
362, 404 (2000) (cleaned up). Thus, if Congress uses a
formulation like “A, B, C, or otherwise D,” we should be
reluctant to simplify the phrase to “D,” which would read out
of the statute the examples plus the word otherwise. Second
and third are the related canons of ejusdem generis and noscitur
a sociis. Ejusdem generis provides that “where general words
follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature
to those objects enumerated by the preceding specific words.”
Wash. State Dep’t of Soc. & Health Servs. v. Guardianship
Estate of Keffeler, 537 U.S. 371, 384 (2003) (cleaned up). And
noscitur a sociis, or the associated-words canon, prescribes that
“a word is given more precise content by the neighboring
words with which it is associated.” United States v. Williams,
553 U.S. 285, 294 (2008). Like the linguistic analysis above,
these canons point us to the specific examples that precede the
word otherwise to understand the more general prohibition that
follows it.
B
The Supreme Court has embraced this understanding of
how a residual otherwise phrase should be interpreted. In
Begay v. United States, 553 U.S. 137 (2008), the Court
considered what constitutes a “violent felony” under the Armed
Career Criminal Act (ACCA). The operative definition
extends to any crime that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). The question presented was
whether a DUI offense falls within the residual otherwise
clause. Answering no, the Court expressed no doubt that drunk
driving “presents a serious potential risk of physical injury to
another,” at least as those words are commonly understood.
9
But it held that the residual clause “covers only similar crimes,
rather than every crime that ‘presents a serious potential risk of
physical injury to another.’” 553 U.S. at 142. The Court
explained that “to give effect to every clause and word of th[e]
statute, we should read the examples as limiting the crimes that
[the residual clause] covers to crimes that are roughly similar,
in kind as well as in degree of risk posed, to the examples
themselves.” Id. at 143 (cleaned up). For if Congress “meant
the statute to be all encompassing, it is hard to see why it would
have needed to include the examples at all.” Id. at 142.
The Court specifically rejected the government’s
understanding of otherwise. There as here, the government
argued that because the dictionary defines it to mean “in a
different manner,” the residual clause must sweep in all
conduct that satisfies its literal terms, regardless of the
preceding statutory context. Brief for the United States at 25–
26, Begay v. United States, No. 06-11543 (U.S.). Disagreeing,
the Court explained that “the word ‘otherwise’ can (we do not
say must) refer to a crime that is similar to the listed examples
in some respects but different in others—similar, say, in respect
to the degree of risk it produces, but different in respect to the
‘way or manner’ in which it produces that risk.” 553 U.S. at
144 (cleaned up). In other words, as used to introduce a
residual clause following a list of examples, an otherwise
clause is not unambiguously all-encompassing. It can connote
not only difference but also a degree of similarity, particularly
where necessary to avoid reducing the examples to surplusage.
C
My colleagues do not dispute that these principles guide
our interpretation of a phrase with the general form “A, B, C,
or otherwise D.” Instead, they argue that section 1512(c)(2)
10
does not take that form. They offer two distinctions, but one is
immaterial and the other cuts against their position.
First, my colleagues note that ACCA and section 1512(c)
are composed differently: The ACCA definition at issue in
Begay involved “a single, unbroken sentence within the same
paragraph,” whereas section 1512(c) uses “a separately
numbered subparagraph, after a semicolon and line break.”
Ante at 28. But the relationship created by the word otherwise
does not depend on punctuation or line breaks. Rather, as
explained above, it flows from the connotation of similarity,
the intuition that speakers do not deliberately waste words, and
the need to give effect to every clause of a statute. Thus, every
claim made above about the phrase “A, B, C, or otherwise D”
applies no less to the list
(1) A;
(2) B;
(3) C; or
(4) otherwise D.
Other decisions reinforce the primacy of text over
punctuation or line breaks. In United States v. O’Brien, 560
U.S. 218 (2010), the Court held that Congress, by moving part
of a statutory paragraph into a separate subparagraph, did not
transform the shifted text from an offense element into a
sentencing factor. The Court reasoned that a “more logical
explanation for the restructuring” was simply to break up the
paragraph “into a more readable statute,” as recommended by
modern legislative drafting guidelines. Id. at 233–34. The
cited guidelines suggest that text be broken into subsections
and subparagraphs “[t]o the maximum extent practicable.”
House Legislative Counsel’s Manual on Drafting Style, HLC
No. 104.1, § 312 at 24 (1995); see Senate Office of the
Legislative Counsel, Legislative Drafting Manual § 112 at 9–
11
11 (1997). O’Brien thus confirms that we should not elevate
Congress’s drafting style—especially a choice to divide
statutes into smaller subdivisions—over the text it enacted.1
Second, the lead opinion invokes the “complicated”
structure of section 1512(c). To begin, it notes the length and
grammatical complexity of the examples preceding the word
otherwise. Ante at 40 n.8. But it draws the wrong inference
from this complexity. The long, reticulated list of examples in
subsection (c)(1) makes it even more implausible that
subsection (c)(2) would render them meaningless.
Consider another pair of hypotheticals. Suppose a
companion and I are setting off to a mountaineering adventure.
If my partner says, “Please don’t drive too fast or otherwise put
us in danger during this trip,” I will have difficulty discerning
whether “otherwise put us in danger” is meant to be all-
encompassing (i.e., covering both driving and mountaineering
hazards) or limited to dangerous driving besides speeding. But
suppose my partner says: “Please don’t drive too fast;
accelerate or decelerate suddenly and without warning; change
lanes without signaling; cut off or tailgate other cars; yell,
gesture, or make strange faces at other drivers or their
passengers; or otherwise put us in danger during this trip.” In
that case, I will have no doubt that the otherwise clause refers
1
Of course, statutes with semicolons and line breaks sometimes
do define unrelated offenses. Loughrin v. United States, 573 U.S.
351 (2014), involved such a statute. It imposed criminal penalties on
anyone who knowingly schemes (1) to defraud a financial institution
or (2) to obtain property owned by a financial institution through
false pretenses. 18 U.S.C. § 1344. Interpreting these clauses as
operating independently, the Court rejected an argument that the
second clause requires proof of intent to defraud. 573 U.S. at 355.
But section 1344 lacked the key word—otherwise—that textually
links the two subsections in section 1512(c).
12
only to driving hazards. The reason is plain: A speaker would
not waste time and effort enumerating a reticulated list only to
render it meaningless with a catchall that subsumes and is not
delimited by the list. The longer and more complex the list of
examples preceding the word otherwise, the stronger the case
for giving the residual clause a contextual rather than all-
encompassing interpretation.
The lead opinion further invokes the complexity of the
words following otherwise. It conjures up this clause:
“Whoever does A, B, or C to lions, tigers, or giraffes; Or
otherwise does X, Y, or Z to the jungle.” Ante at 40 n.8. It
sounds strange because the actions one might take against
lions, tigers, or giraffes are so different from the actions one
might take against a jungle. It is thus hard to think of the words
preceding “otherwise” as setting forth examples of what
follows. Precisely because “otherwise” cannot bear its usual
connotation of “different from but similar to,” the entire
sentence sounds off. Section 1512(c) is not composed like that:
Match any of the four verbs in subsection (c)(1) (alter, destroy,
mutilate, or conceal) with any of its three direct objects (a
record, document, or other object) and you will come up with
a paradigmatic example of obstructing, influencing, or
impeding an official proceeding. In other words, despite the
grammatical complexity of the words preceding and following
otherwise, it is easy to recognize the preceding words as setting
forth examples of what follows. And that makes section
1512(c) much closer to my stylized “A, B, C, or otherwise D”
formulation—and to the actual ACCA text construed by the
Supreme Court in Begay—than it is to the exceedingly odd
clause formulated by the lead opinion.2
2
My colleagues cite two lower-court decisions construing
statutes with a residual otherwise clause. Ante at 12. Both cases
invoked the residual clause to support a broad interpretation of a
13
D
How do these general principles apply to section 1512(c)?
Without the line break, its actus reus covers anyone who “(1)
alters, destroys, mutilates, or conceals a record, document, or
other object, … with the intent to impair the object’s integrity
or availability for use in an official proceeding; or (2) otherwise
obstructs, influences, or impedes any official proceeding.” The
parties and the district court have proposed three different
readings of subsection (c)(2), based on three different
inferences about the relevant similarity through which
otherwise connects the two subsections.
As noted above, the government reads otherwise to mean
“in any other way.” On this view, the only relevant similarity
between the two subsections is that both address obstructing,
influencing, or impeding an official proceeding. Thus,
subsection (c)(1) does not operate to narrow subsection (c)(2),
which effectively swallows up subsection (c)(1).
In contrast, the district court and the defendants read
otherwise to require some further similarity between the
obstruction covered by subsection (c)(2) and the specific acts
covered by subsection (c)(1). But what is the relevant criterion
of similarity? The district court read section 1512(c) as focused
on the preservation of physical evidence, consistent with the
string of nouns (“record, document, or other object”) in
subsection (c)(1). It therefore held that subsection (c)(2)
requires the defendant to have “taken some action with respect
to a document, record, or other object in order to corruptly
preceding example. Collazos v. United States, 368 F.3d 190, 199–
200 (2d Cir. 2004); United States v. O’Hara, 143 F. Supp. 2d 1039,
1041–42 (E.D. Wis. 2001). Neither case suggests that a residual
otherwise clause must be untethered from the preceding illustrations.
14
obstruct, impede or influence an official proceeding.” Miller,
589 F. Supp. 3d at 78.
For their part, the defendants read section 1512(c) as
focused on the development and preservation of evidence,
consistent with the spoliation addressed in subsection (c)(1)
and with the broader tampering and obstruction provisions that
appear throughout section 1512 and chapter 73. The
defendants invoke the views of a distinguished commentator
who summarized obstruction law this way:
[O]bstruction laws do not criminalize just any act that
can influence a “proceeding.” Rather they are
concerned with acts intended to have a particular kind
of impact. A “proceeding” is a formalized process for
finding the truth. In general, obstruction laws are
meant to protect proceedings from actions designed to
subvert the integrity of their truth-finding function
through compromising the honesty of decision-
makers (e.g., judge, jury) or impairing the integrity or
availability of evidence—testimonial, documentary,
or physical.
Memorandum from Bill Barr to Deputy Att’y Gen. Rod
Rosenstein & Ass’t Att’y Gen. Steve Engel at 1 (June 8, 2018),
http://perma.cc/CWX6-GAE9. For these reasons, the
defendants urge limiting subsection (c)(2) to acts that impair
the integrity or availability of evidence.
Which of these competing interpretations is best? That is
a hard question, for each has some difficulties. The district
court’s focus on physical evidence finds strong textual support
in subsection (c)(1), but risks making subsection (c)(2) into
surplusage. What acts directed at physical evidence might
obstruct, influence, or impede an official proceeding without
also altering, destroying, mutilating or concealing the evidence
15
in order to impair its integrity or availability for use in an
official proceeding? Perhaps covering up, falsifying, or
making false entries in the evidence, as the district court noted,
see Miller, 589 F. Supp. 3d at 71, but that suggests an oddly
narrow range of application for the broadly worded residual
clause. The defendants’ focus on evidence preserves
meaningful application for both subsection (c)(1) (which
covers impairing the availability of physical evidence) and
subsection (c)(2) (which, on this view, would cover impairing
the availability of other kinds of evidence). As explained
below, it also accounts for all the caselaw under section
1512(c). But a focus on evidence writ large—as opposed to
physical evidence—is arguably harder to infer from subsection
(c)(1)’s examples, all of which involve physical evidence. The
defendants’ interpretation thus has a bit of a Goldilocks quality
to it—not too narrow and not too broad, but just right. Finally,
the government’s interpretation has more than its share of
difficulties; as explained above, it would reduce subsection
(c)(1) and the word otherwise to surplusage, despite Begay.
In fact, the two subsections do not fit neatly together, so
any harmonization will be textually awkward. But the
defendants win under their interpretation or that of the district
court, because the indictments do not allege that they took any
action affecting physical or other evidence relevant to the
Electoral College certification. And for the reasons given
above, it seems to me a stretch to say that the government’s
interpretation is not only the best, but so much better than the
others that we can declare it unambiguously correct and call it
a day without completing a full-blown statutory analysis.3
3
The lead opinion misreads this account. My point here is that
all three interpretations of section 1512(c)(2) have significant textual
difficulties, so none is unambiguously correct. As explained at
length below, an evidence-focused reading is the best one despite its
16
My colleagues conclude that subsection (c)(2) is
unambiguous because its verbs sweep broadly and its
introductory word otherwise means “in a different manner.”
Ante at 11. But ambiguity determinations do not end with the
precise text that is directly controlling in the case. Kavanaugh,
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2134–
38 (2016); see Yates v. United States, 574 U.S. 528, 537 (2015)
(plurality) (“Whether a statutory term is unambiguous … does
not turn solely on dictionary definitions of its component
words.”). Instead, as the Supreme Court has stressed, “[t]he
plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which
that language is used, and the broader context of the statute as
a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
Accordingly, the ambiguity determination in this case should
seek to understand section 1512(c) within its statutory context
as part of section 1512 and chapter 73. And at a minimum, it
should seek to harmonize the subsections of section 1512(c),
which consists of a single sentence nesting two subsections
between a shared mens rea element at the beginning and a
shared penalty at the end. Finally, even if I am wrong about all
of this, my colleagues err in asserting that otherwise
unambiguously means “in a different manner”—with no
consideration of any possible similarity. That mistake alone is
enough to show ambiguity within the four corners of
subsection (c)(2), in addition to the ambiguity arising from
structural considerations about how the subsections most
plausibly interact in the broader statutory context.
arguable Goldilocks quality—not “because” of it, ante at 39 n.8.
And my Goldilocks quip may itself be a bit too pejorative, for one
can infer an evidence-based focus from the broader text and structure
of section 1512.
17
IV
Because section 1512(c) contains ambiguity, we must use
all “traditional methods of statutory interpretation” to
determine its best meaning. Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 16 (2011). As shown
above, the text of section 1512(c) cuts against the government’s
all-encompassing interpretation, though perhaps not
decisively. And so do at least seven other considerations: the
presumption against surplusage, the related canons of ejusdem
generis and noscitur a sociis, the structure of section 1512, the
history of that section, precedent construing it, the improbable
and unconstitutional breadth of the government’s
interpretation, and the rule of lenity.
A
As noted above, it is a “cardinal principle of statutory
construction that we must give effect, if possible, to every
clause and word of a statute.” Williams, 529 U.S. at 404(cleaned up). The government’s reading of subsection (c)(2)
would create three levels of problematic surplusage.
First, as explained above, it would collapse subsection
(c)(1) into subsection (c)(2). Yet “the canon against surplusage
is strongest when an interpretation would render superfluous
another part of the same statutory scheme.” Marx v. Gen.
Revenue Corp., 568 U.S. 371, 386 (2013). Subsections (c)(1)
and (c)(2) are not just part of the same statutory scheme; they
are part of one sentence, and they share a single mens rea
requirement and a single authorized punishment. Within a
single phrase, clause, or sentence, there is no surplusage
problem with collapsing recognized couplets (such as “aid and
abet”) or strings of near synonyms (such as “obstructs,
influences, or impedes”). Such formulations indicate that
“iteration is obviously afoot.” Moskal v. United States, 498
18
U.S. 103, 120 (1990) (Scalia, J., dissenting). But here,
subsection (c)(1) is longer and more grammatically complex
than subsection (c)(2). The former consists of four verbs, three
direct objects, an attempt clause, and a second intent
requirement, which collectively span 32 words. The latter
consists of the critical word otherwise, three verbs, one direct
object, and an attempt clause, which collectively span 13
words. Given the respective length and structure of these two
provisions, there is no plausible reason why Congress would
enact all of section 1512(c) just to reach the conduct described
after the word otherwise in the short, catchall subsection (c)(2).
The concurrence responds that my interpretation creates
the same surplusage problem because, on my view, subsection
(c)(2) still covers all the conduct prohibited by subsection
(c)(1). Ante at 17 (opinion of Walker, J.). Of course, the
residual term D in any “A, B, C, or otherwise D” formulation
covers the preceding examples. And so, under any of the three
possible interpretations of section 1512(c), subsection (c)(2)
covers the examples set forth in subsection (c)(1). But on my
view, the examples do meaningful work by narrowing the
breadth of the residual term. See Begay, 553 U.S. at 142–43.
On my colleagues’ view, in contrast, the examples in
subsection (c)(1) do no work at all, and section 1512(c) has the
same breadth it would have if Congress had omitted all of
subsection (c)(1) and the word otherwise.
Second, the government’s reading also would collapse
most of section 1512 into the subsection (c)(2) catchall.
Section 1512 sets forth 21 different offenses, and the
government’s reading would fold at least 15 of them into
subsection (c)(2). Here are a few random examples: Section
1512(a)(1) prohibits killing a person to prevent his attendance
at an official proceeding or to prevent the production of a
record, document, or other object in an official proceeding. 18
19
U.S.C. § 1512(a)(1)(A), (B). Section 1512(b)(1) prohibits
corruptly persuading another person to influence, delay, or
prevent testimony at an official proceeding. Section
1512(d)(1) prohibits harassing another person to dissuade him
from attending an official proceeding. And section 1512(d)(4)
prohibits harassing another person to prevent a criminal
prosecution. All these acts—and the others prohibited by most
other parts of section 1512—would influence or affect an
official proceeding.4
This wholesale surplusage is even stranger given section
1512’s graduated penalty scheme. Section 1512(a) authorizes
terms of imprisonment of up to 30 years for various obstructive
acts involving the use of physical force, 18 U.S.C.
§ 1512(a)(3)(B), and up to 20 years for obstructive acts
involving the threat of physical force, id. § 1512(a)(3)(C).
Section 1512(b) authorizes terms of up to 20 years for
obstructive acts involving intimidation. Id. § 1512(b). Section
1512(d) authorizes maximum terms of only three years for
obstructive acts involving harassment. Id. § 1512(d). By
collapsing most of section 1512 into its subsection (c)(2), the
government’s interpretation would lump together conduct
warranting up to three decades of imprisonment with conduct
4
The 15 provisions that would collapse into subsection (c)(2)
are subsections (a)(1)(A), (a)(1)(B), (a)(2)(A), (a)(2)(B)(i),
(a)(2)(B)(ii), (a)(2)(B)(iii), (a)(2)(B)(iv), (b)(1), (b)(2)(A), (b)(2)(B),
(b)(2)(C), (b)(2)(D), (c)(1), (d)(1), and (d)(4). The five provisions
that would not collapse into subsection (c)(2) are subsections
(a)(1)(C), (a)(2)(C), (b)(3), (d)(2), and (d)(3). They involve
wrongfully preventing a third party from conveying information to
law enforcement personnel, which is conduct upstream from an
official proceeding. To confirm the details, a reader may review the
appendix to this dissent, which sets forth section 1512 in its entirety.
20
warranting at most three years—a distinction reflected in the
broader structure of section 1512.
Third, the government’s interpretation of subsection (c)(2)
would swallow up various other chapter 73 offenses outside of
section 1512. Two of the most longstanding chapter 73
offenses are sections 1503 and 1505, which trace back at least
to 1909. See United States v. Poindexter, 951 F.2d 369, 380
(D.C. Cir. 1991). Section 1505 prohibits corruptly obstructing
proceedings pending before Congress or executive agencies.
Absent an act of terrorism, it imposes a maximum sentence of
five years. Under the government’s reading of section
1512(c)(2), all 197 words of this section are made surplusage
by 13 words nested in a subparagraph of a subsection in the
middle of section 1512.5 Section 1503 prohibits corruptly
influencing a juror or court officer and, absent an attempted
killing or a class A or class B felony, authorizes a maximum
sentence of ten years. 18 U.S.C. § 1503(b)(3). The
government’s interpretation of subsection (c)(2) makes that
part of section 1503 redundant, leaving only its separate
application to acts of harming protected persons after the fact.
To explain all this surplusage, the lead opinion notes that
section 1512(c) was enacted after the other provisions in
question. As it notes, section 1512 reaches acts of direct
obstruction such as a defendant destroying evidence himself,
5
The government suggests that its interpretation of section
1512(c)(2) would not make section 1505 completely redundant
because a “proceeding” under section 1505 might not be an “official
proceeding” under section 1512. But the government’s own
Criminal Resource Manual explains that the definition of “official
proceeding” in section 1515(a)(1) is largely “a restatement of the
judicial interpretation of the word ‘proceeding’ in §§ 1503 and
1505.” U.S. Dep’t of Just., Crim. Res. Manual § 1730 (1997); see
also United States v. Perez, 575 F.3d 164, 169 (2d Cir. 2009).
21
as well as acts of indirect obstruction such as the defendant
pressuring others to do so. Ante at 35. And unless Congress
wanted to rewrite the entire statute, it could not reach direct
obstruction without creating some overlap with earlier
provisions reaching indirect obstruction. But the government’s
interpretation does not create such massive surplusage by
reaching direct as well as indirect obstruction. Instead, it does
so by so dramatically broadening what counts as obstruction in
the first place, sweeping in all acts that affect or hinder a
proceeding (including, as explained below, such protected
activities as advocacy, lobbying, and protest).
The concurrence, for its part, again claims that my
interpretation creates the same degree of surplusage as the
government’s. Ante at 17–18 (opinion of Walker, J.). A few
illustrations rebut this assertion. Consider section 1512(d)(1),
which authorizes a three-year term of imprisonment for anyone
who harasses and thereby hinders any person from “attending
or testifying in an official proceeding.” Someone who prevents
spectators from attending a proceeding has surely influenced or
affected the proceeding—and thus violated subsection (c)(2)
on the government’s interpretation. But that person has not
impaired the integrity or availability of evidence for use in the
proceeding—and thus has not violated section 1512(c) on my
interpretation. At the other end of the penalty scheme, the same
point holds true for subsection (a)(1)(A), which authorizes a
thirty-year sentence for attempts to kill someone to prevent the
“attendance or testimony of any person in an official
proceeding.” For both provisions, my interpretation yields
partial overlap with subsection (c)(2), in cases involving the
killing or intimidation of witnesses as opposed to spectators.
On the other hand, the government’s interpretation yields
complete surplusage.
22
Taking a step back, the concurrence is nonetheless correct
that my evidence-focused interpretation of section 1512(c)
creates significant overlap with other provisions of section
1512. But if that counts as a significant flaw with my position,
the solution is surely not to broaden the scope of section
1512(c) to what the government suggests, and thereby
significantly increase the degree of overlap or surplusage.
Instead, the solution would be to narrow the scope of section
1512(c) to what the district court suggests, which would more
considerably reduce the degree of overlap or surplusage.
The concurrence seeks to reduce this substantial
surplusage problem by imposing a heightened mens rea
requirement on section 1512(c). As the concurrence explains,
section 1512(c) requires the defendant to have acted
“corruptly,” unlike the specific-intent crimes set forth in
section 1512(a) and 1512(d). Ante at 18 (opinion of Walker,
J.). But the Supreme Court has explained that there is no
“meaningful difference” between acting “corruptly” and acting
with a “specific intent” to obtain some unlawful advantage.
Marinello, 138 S. Ct. at 1108. This remains true even under
the concurrence’s view that acting “corruptly” under section
1512(c) requires knowledge that one’s conduct is unlawful.
For it is highly implausible that a defendant could intentionally
perform one of the inherently obstructive acts prohibited by
section 1512(a) or (d)—such as killing or harassing a person to
prevent him from attending or testifying at an official
proceeding—without knowledge of that conduct’s
unlawfulness. Moreover, if all violations of sections 1503 and
1505 involve corrupt action, see ante at 8 (opinion of Walker,
J.), then the concurrence’s position in no way mitigates the
surplusage problem involving those provisions.
More generally, both of my colleagues note that some
degree of overlap in criminal provisions is common, no
23
construction of section 1512(c)(2) will eliminate all surplusage,
and the canons afford no basis for preferring a construction
“substituting one instance of superfluous language for
another.” United States v. Ali, 718 F.3d 929, 938 (D.C. Cir.
2013); see ante at 34–35; ante at 18–19 (opinion of Walker, J.).
All true enough, but surplusage is nonetheless disfavored; other
things equal, a construction that creates substantially less of it
is better than a construction that creates substantially more.
Here, the government’s interpretation of subsection (c)(2)
would swallow up all of the immediately preceding subsection
(c)(1), most of section 1512, and much of the entire chapter 73,
reaching dozens of offenses covering much narrower acts and
authorizing much lower penalties. I am unaware of any case
resolving ambiguity in favor of such wholesale redundancy.
B
The interpretive canons of ejusdem generis and noscitur a
sociis also support a restrained interpretation of section
1512(c). As explained above, these canons reflect linguistic
conventions that must factor into the initial assessment whether
that provision is ambiguous. They also support resolving any
ambiguity in favor of the defendants.
Begin with ejusdem generis. It “limits general terms that
follow specific ones to matters similar to those specified.” CSX
Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 294
(2011) (cleaned up); see Guardianship Estate of Keffeler, 537
U.S. at 384. And it “applies when a drafter has tacked on a
catchall phrase at the end of an enumeration of specifics.”
Scalia & Garner, supra, at 199. Here, all agree that subsection
(c)(2) is a catchall phrase tacked on after the specific offenses
set forth in subsection (c)(1).
Noscitur a sociis, or the associated-words canon, provides
that “a word is given more precise content by the neighboring
24
words with which it is associated.” Williams, 553 U.S. at 294.
Often, such an association must be inferred from statutory
structure or other contextual clues. E.g., Dole v. United
Steelworkers of Am., 494 U.S. 26, 36 (1990) (“words grouped
in a list should be given related meaning”). But here, the word
otherwise directly signals that the subsections are associated.
And interpreting the catchall subsection (c)(2) in light of the
specific examples in subsection (c)(1) is particularly
appropriate given the relative complexity of the examples and
breadth of the catchall.
My colleagues argue that both canons are irrelevant
because “the word ‘otherwise’ does not immediately follow a
list of terms” and is in a separate subparagraph from subsection
(c)(1). Ante at 29. But “a listing is not prerequisite” for
applying the associated-words canon. Scalia & Garner, supra,
at 197. And courts have applied ejusdem generis “to all sorts
of syntactic constructions that have particularized lists
followed by a broad, generic phrase.” Id. at 200. Thus, while
a syntactically parallel listing—like “dogs, cats, and other
animals,” see ante at 29—is one way to trigger these canons, it
is far from the only way. Moreover, as explained above, we
should not elevate Congress’s use of line breaks and paragraph
numbering over the text it enacted. At bottom, my colleagues
reason that section 1512(c)’s syntax and structure do not weave
together its subsections tightly enough to justify inferring an
association. But the text itself creates the association:
The ejusdem generis rule is an example of a broader
linguistic rule or practice to which reference is made
by the Latin tag noscitur a sociis. Words, even if they
are not general words like ‘whatsoever’ or ‘otherwise’
preceded by specific words, are liable to be affected
by other words with which they are associated.
25
Noscitur a Sociis, Black’s Law Dictionary (11th ed. 2019)
(emphasis added) (quoting R. Cross, Statutory Interpretation
118 (1976)). Put differently, the canons confirm that syntax
and structure can sometimes substitute for an association-
creating word like otherwise. But here we have the word itself.
C
Beyond considerations of surplusage, the structure of
section 1512 cuts further against the government’s broad
reading of subsection (c)(2). As noted above, section 1512
contains 21 separate subparagraphs prohibiting various forms
of tampering and obstruction. Setting aside subsection (c)(2),
the 20 other provisions are all narrow, and every one of them
addresses preserving the flow of truthful (and only truthful)
information to investigatory or judicial processes. To break
this persistent and uniform focus, one might expect some
degree of clarity. Instead, we have the opposite: an otherwise
connector suggesting that Congress did not intend a major
discontinuity in focus or scope.
If subsection (c)(2) were all-encompassing, its placement
would also be puzzling. That provision is one subparagraph
nested inside a subsection in the middle of 19 otherwise narrow
prohibitions. It is not even its own sentence, and it shares with
subsection (c)(1) clauses prescribing a mens rea element and a
maximum punishment. This is exactly where we might expect
to find a residual clause for subsection (c)(1). But it is an
exceedingly unlikely place to find an all-encompassing
residual clause for most of section 1512 and much of chapter
73. Of course, Congress “does not alter the fundamental details
of a [statutory] scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468 (2001).
26
Moreover, the government’s interpretation of section
1512(c) injects a significant structural anomaly into Chapter 73
because of its 20-year maximum penalty. If section 1512(c) is
focused on evidence impairment, then Chapter 73 has a
comprehensible scheme of penalties keyed to the seriousness
and sophistication of the obstruction. For example, picketing,
parading, or using a sound truck to influence a proceeding
carries a one-year maximum penalty. 18 U.S.C. § 1507. Using
threats or force generally carries a maximum penalty of either
5 or 10 years, depending on whether the proceeding is before a
court, an agency, or Congress. Id. §§ 1503(b), 1505. And
destroying, manipulating, or falsifying evidence carries a
maximum penalty of 20 years. Id. §§ 1512(c), 1519. This
scheme ties the penalty to the sophistication of the obstruction
and the kind of proceeding targeted. Rudimentary forms of
obstruction, such as picketing, receive the lowest penalty. And
the most sophisticated or pernicious forms, such as shredding
documents or fabricating evidence, receive the highest. The
government’s interpretation would collapse all of this, making
any form of obstructing an official proceeding a 20-year felony.
Finally, consider the relevant titles, which may “supply
cues” about the meaning of operative text. Yates, 574 U.S. at
540 (plurality); see Scalia & Garner, supra, at 221 (“The title
and headings are permissible indicators of meaning.”). For one
thing, Congress inserted the disputed text into section 1512,
which is titled “Tampering with a witness, victim, or an
informant.” Direct obstruction by destroying documents is one
modest step removed from indirect obstruction by pressuring a
witness to destroy documents. On the other hand, what the
government posits is covered, including everything from
lobbying to rioting, is much further removed from section
1512’s heartland as reflected in its title. Moreover, the title of
the statute that enacted section 1512(c) is the Corporate Fraud
Accountability Act of 2002. Document destruction readily
27
conjures up images of corporate fraud. Advocacy, lobbying,
and protest do not. For that matter, neither does assaulting
police officers or rioting in the Capitol.
D
Statutory history reinforces that section 1512(c) covers
only acts that impair the integrity or availability of evidence.
That provision was the first and most significant provision
enacted by the Corporate Fraud Accountability Act of 2002,
which in turn was part of the larger Sarbanes-Oxley Act. Pub.
L. 107-204, tit. XI, § 1102, 116 Stat. 745, 807. As the Supreme
Court has explained, these statutes were prompted by the Enron
Corporation’s accounting scandal and collapse, which exposed
what was perceived as a significant loophole in the law of
obstruction: “corporate document-shredding to hide evidence
of financial wrongdoing” was unlawful if one person directed
another, but not if he acted alone. See Yates, 574 U.S. at 535–
36 (plurality). This came to be known as the Arthur Andersen
loophole, named after Enron’s financial auditor.
The government posits that Congress plugged the loophole
with a grossly incommensurate patch. On its view, instead of
simply adding a prohibition on direct evidence impairment to
preexisting prohibitions on indirect evidence impairment,
Congress added a prohibition on obstructing or influencing per
se. My colleagues acknowledge the mismatch, but they find it
irrelevant because the governing text is unambiguous. Ante at
31. But the text is ambiguous, and this mismatch is another
reason for resolving the ambiguity in the defendants’ favor. Of
course, legislation can sweep more broadly than the primary
evil that Congress had in mind. See Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 79 (1998). However, if the
text is ambiguous and an interpretation seems implausible “in
light of the context from which the statute arose,” that suggests
28
things have gotten off track. Bond v. United States, 572 U.S.
844, 860 (2014); see Bray, The Mischief Rule, 109 Geo. L.J.
967 (2021).6
E
Section 1512(c)(2) has been on the books for two decades
and charged in thousands of cases—yet until the prosecutions
arising from the January 6 riot, it was uniformly treated as an
evidence-impairment crime. This settled understanding is a
“powerful indication” against the government’s novel position.
FTC v. Bunte Bros., 312 U.S. 349, 351–52 (1941).
My colleagues note that only two cases have held section
1512(c)(2) requires some form of evidence impairment. Ante
at 13–15, 15 n.4. But until the January 6 prosecutions, courts
had no occasion to consider whether it sweeps more broadly,
because all the caselaw had involved conduct plainly intended
to hinder the flow of truthful evidence to a proceeding.
My colleagues claim only one counterexample, United
States v. Reich, 479 F.3d 179 (2d Cir. 2007). The defendant
there falsified an official court document and used it to
persuade another party to withdraw a filing, see id. at 182–83,
which plainly influenced an official proceeding. Reich fits well
6
To the extent it is relevant, legislative history reinforces the
statutory focus on evidence impairment. All of it refers to section
1512(c)(2) as covering document-shredding and other ways to
conceal or destroy evidence. See 148 Cong. Rec. S6545–47 (daily
ed. July 10, 2002); id. at S6549–50. My colleagues cite one
assertedly broader statement by Senator Hatch that section 1512(c)
“strengthens an existing federal offense that is often used to
prosecute document shredding and other forms of obstruction of
justice.” Id. at S6550. But he described these other forms of
obstruction as merely other ways of “destroying evidence.” Id.29
within an evidence-focused interpretation of subsection (c)(2),
for subsection (c)(1) extends to falsifying any “record” or
“document” connected to an official proceeding, not just
documents formally admitted into evidence.
Moreover, even the cases cited by my colleagues
acknowledge that the word otherwise connects subsections
(c)(1) and (c)(2) and recognize the latter subsection’s focus on
evidence. For example, United States v. Burge, 711 F.3d 803(7th Cir. 2013), explained that the two subsections “are linked
with the word ‘otherwise,’ so we can safely infer that Congress
intended to target the same type of … misconduct that might
‘otherwise’ obstruct a proceeding beyond simple document
destruction.” Id. at 809. And United States v. Petruk, 781 F.3d
438 (8th Cir. 2015), praised a jury instruction explaining that
the defendant must “contemplate some particular official
proceeding in which the testimony, record, document, or other
object might be material.” Id. at 445 n.2. See also United
States v. Volpendesto, 746 F.3d 273, 287 (7th Cir. 2014)
(affirming conviction based on sufficient evidence that the
defendant acted “out of desire to influence what evidence came
before the grand jury”); United States v. Desposito, 704 F.3d
221, 231 (2d Cir. 2013) (affirming conviction because the
defendant had planned “to create fraudulent evidence”).
F
The Supreme Court repeatedly has rejected “improbably
broad” interpretations of criminal statutes that would reach
significant areas of innocent or previously unregulated
conduct. Bond, 572 U.S. at 860; see, e.g., Van Buren v. United
States, 141 S. Ct. 1648, 1661 (2021) (rejecting interpretation of
computer fraud statute that “would attach criminal penalties to
a breathtaking amount of commonplace computer activity”);
McDonnell v. United States, 579 U.S. 550, 574–76 (2016)
30
(rejecting “expansive interpretation” of bribery statute that
would reach “normal political interaction between public
officials and their constituents”); Bond, 572 U.S. at 863(rejecting interpretation that would turn chemical weapons
statute “into a massive federal anti-poisoning regime that
reaches the simplest of assaults”). Likewise, the Court
routinely disfavors interpretations that would make a statute
unconstitutional—or even raise serious constitutional
questions. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988). Here, the government’s interpretation would make
section 1512(c)(2) both improbably broad and unconstitutional
in many of its applications.
In the government’s view, subsection (c)(2) reaches any
act that obstructs, influences, or impedes an official
proceeding—which means anything that affects or hinders the
proceeding, see Marinello, 138 S. Ct. at 1106. Among other
things, that construction would sweep in advocacy, lobbying,
and protest—common mechanisms by which citizens attempt
to influence official proceedings. Historically, these activities
did not constitute obstruction unless they directly impinged on
a proceeding’s truth-seeking function through acts such as
bribing a decisionmaker or falsifying evidence presented to it.
And the Corporate Fraud Accountability Act of 2002, which
created section 1512(c), seems an unlikely candidate to extend
obstruction law into new realms of political speech, just as the
Chemical Weapons Convention Implementation Act seemed
an unlikely candidate to regulate the tortious use of
commercially available chemicals to cause an “uncomfortable
rash.” See Bond, 572 U.S. at 851–52.
Consider a few basic examples. An activist who
successfully rails against bringing a bill to a vote on the Senate
floor has obstructed or influenced an official proceeding. (For
31
purposes of section 1512, the proceeding “need not be pending
or about to be instituted at the time of the offense.” 18 U.S.C.
§ 1512(f)(1).) A lobbyist who successfully persuades a
member of Congress to change a vote has likewise influenced
an official proceeding. So has a peaceful protestor who,
attempting to sway votes, holds up a sign in the Senate gallery
before being escorted away. Of course, this case involves
rioting as opposed to peaceful advocacy, lobbying, or protest.
But the construction of section 1512(c) adopted by my
colleagues will sweep in all of the above. And this breadth is
especially problematic because section 1512 applies to
congressional and executive proceedings as well as judicial
ones. There is no constitutional or historical pedigree for
lobbying to influence judicial decisions in pending cases. But
advocacy, lobbying, and protest before the political branches is
political speech that the First Amendment squarely protects.
E.g., Edwards v. South Carolina, 372 U.S. 229, 235–36 (1963).
Thus, “to assert that all endeavors to influence, obstruct, or
impede the proceedings of congressional committees are, as a
matter of law, corrupt would undoubtedly criminalize some
innocent behavior.” United States v. North, 910 F.2d 843, 882
(D.C. Cir. 1990) (cleaned up). Judge Silberman made the same
point more colorfully: “If attempting to influence a
congressional committee by itself is a crime, we might as well
convert all of Washington’s office buildings into prisons.” Id.
at 942 (opinion dissenting in part).
My colleagues dismiss this concern with a promise that the
statute’s one-word mens rea requirement—“corruptly”—will
impose meaningful limits even if its 30-word actus reus does
not. But the lead opinion does not even settle on what that
requirement is, much less explain how it would cure the
improbable breadth created by an all-encompassing view of the
32
actus reus. And the various possibilities that my colleagues
suggest do not inspire much confidence.
First, the lead opinion cites Arthur Andersen LLP v. United
States, 544 U.S. 696 (2005), for the proposition that acting
corruptly may require nothing more than an act that is
“wrongful, immoral, depraved, or evil.” Ante at 17. But while
Arthur Andersen did describe those adjectives as “normally
associated” with the word corruptly, 544 U.S. at 705, it
nowhere suggested that this adjectival string could supply a
complete definition. Instead, it held that the jury instruction
before it was legally deficient for failing to require either
consciousness of wrongdoing or a sufficient connection
between the disputed conduct and an official proceeding. See
id. at 705–08. Moreover, we have held that this precise
adjectival string neither narrows nor clarifies a statutory
requirement of acting corruptly. Poindexter, 951 F.2d at 379.
This problem is particularly serious given the breadth of
section 1512(c). Arthur Andersen involved section 1512(b),
which covers narrow categories of inherently wrongful conduct
such as preventing the testimony of a third party, causing
another person to withhold evidence, or preventing the
communication of evidence to a law enforcement officer or
judge. In contrast, the actus reus posited here would sweep in
any conduct that influences or affects an official proceeding.
Imagine a tobacco or firearms lobbyist who persuades
Congress to stop investigating how many individuals are killed
by the product. Would the lobbyist violate section 1512(c)(2)
because his conduct was “wrongful” or “immoral” in some
abstract sense? Or what if the lobbyist believed that his work
was wrongful or immoral, but did it anyway to earn a living?
The lead opinion dismisses such hypotheticals, ante at 17, but
without explaining why liability would not attach under a mere
requirement of acting wrongfully. Moreover, probing the
33
defendant’s mental state is a question of fact for the jury. See,
e.g., North, 910 F.2d at 942 (Silberman, J., dissenting in part)
(“it seems inescapable that this is a question of fact for the jury
to determine whether an endeavor was undertaken corruptly”).
A wrongfulness standard thus would impose few limits on the
government’s ability to charge, or a jury’s ability to convict,
for conduct directed at an official proceeding. Decades ago,
we observed that a statute reaching conduct that is not “decent,
upright, good, or right” “affords an almost boundless area for
individual assessment of the morality of another’s behavior.”
Ricks v. District of Columbia, 414 F.2d 1097, 1106 (D.C. Cir.
1968) (cleaned up). The same can be said for a statute reaching
“wrongful, immoral, depraved, or evil” conduct. Under such a
vague standard, mens rea would denote little more than a jury’s
subjective disapproval of the conduct at issue.
Second, the lead opinion proposes that acting corruptly
may mean acting with a “corrupt purpose” or through
“independently corrupt means.” Ante at 18. And because the
defendants here allegedly acted through the corrupt means of
assaulting police officers, the lead opinion continues, we may
safely move on without considering what constitutes a “corrupt
purpose.” Id. The lead opinion invokes other opinions stating
that the use of unlawful means is sufficient, but not necessary,
to show corrupt action. See North, 910 F.2d at 942–43
(Silberman, J., dissenting in part); United States v. Sandlin, 575
F. Supp. 3d 16, 31 (D.D.C. 2021). But that only underscores
the problem: If a “corrupt purpose” may suffice to show acting
corruptly, what purposes count as “corrupt”? Perhaps ones that
are wrongful, immoral, depraved, or evil, but that would just
replicate the vagueness and overbreadth concerns noted above.
Moreover, even if independently unlawful means were
necessary, section 1512(c)(2) still would cover large swaths of
advocacy, lobbying, and protest. Consider a few more
34
examples. A protestor who demonstrates outside a courthouse,
hoping to affect jury deliberations, has influenced an official
proceeding (or attempted to do so, which carries the same
penalty). So has an EPA employee who convinces a member
of Congress to change his vote on pending environmental
legislation. And so has the peaceful protestor in the Senate
gallery. Under an unlawful-means test, all three would violate
section 1512(c)(2) because each of them broke the law while
advocating, lobbying, or protesting. See 18 U.S.C. § 1507(prohibiting picketing outside a courthouse with the intent to
influence a judge, juror, or witness); id. § 1913 (prohibiting
lobbying by agency employees); 40 U.S.C. § 5104(e)(2)(G)
(prohibiting demonstrating inside the Capitol Building). And
each would face up to 20 years’ imprisonment—rather than
maximum penalties of one year, a criminal fine, and six
months, respectively. So while this approach would create an
escape hatch for those who influence an official proceeding
without committing any other crime, it also would supercharge
a range of minor advocacy, lobbying, and protest offenses into
20-year felonies. That still gives section 1512(c)(2) an
improbably broad reach, because it posits that the Corporate
Fraud Accountability Act extended the harsh penalties of
obstruction-of-justice law to new realms of advocacy, protest,
and lobbying.
Third, the lead opinion suggests adding a further mens rea
requirement urged by Justice Scalia in United States v. Aguilar,
515 U.S. 593 (1995). There, he stated that acting “corruptly”
requires “an act done with an intent to give some advantage
inconsistent with official duty and the rights of others.” Id. at
616 (Scalia, J., dissenting in part) (cleaned up); see also id. at
616–17 (“An act is done corruptly if it’s done … with a hope
or expectation of either financial gain or other benefit to oneself
or a benefit of another person.” (cleaned up)). Likewise,
Black’s Law Dictionary states that the word corruptly, as used
35
in criminal statutes, usually “indicates a wrongful desire for
pecuniary gain or other advantage.” Corruptly, Black’s Law
Dictionary (11th ed. 2019).
This improper-benefit test may significantly narrow
section 1512(c)(2), but only by excluding these defendants. As
traditionally applied, the test seems to require that the
defendant seek an unlawful financial, professional, or
exculpatory advantage. See, e.g., Marinello, 138 S. Ct. at 1105(avoiding taxes); Aguilar, 515 U.S. at 595 (disclosing wiretap);
North, 910 F.2d at 851 (fabricating false testimony and
destroying documents). In contrast, this case involves the
much more diffuse, intangible benefit of having a preferred
candidate remain President. If that is good enough, then
anyone acting to achieve a specific purpose would satisfy this
requirement, for the purpose of the action would qualify as the
benefit. For example, the hypothetical firearms lobbyist would
be covered if he sought a “benefit” of less stringent gun
regulations. Likewise, the hypothetical Senate protestor would
do so if she sought a “benefit” of defeating the bill under
review. And so on.
The concurrence urges a more stringent mens rea requiring
the defendant to know that he is acting unlawfully. Ante at 15
(opinion of Walker, J.). The concurrence relies most heavily
on three dissents. But two of them reject the concurrence’s
own proposed standard. See Aguilar, 515 U.S. at 617 (Scalia,
J., dissenting in part) (“in the context of obstructing grand jury
proceedings, any claim of ignorance of wrongdoing is
incredible”); North, 910 F.2d at 940 (Silberman, J., dissenting
in part) (“I would decline to hold here that section 1505
requires knowledge of unlawfulness”); see also id. at 884(majority) (“If knowledge of unlawfulness were required in
order to convict a defendant of violating section 1505, North’s
36
argument might be more colorable. But this is not the case.”).7
That leaves Marinello, which involved a statute making it
unlawful to “corruptly” endeavor to “obstruct or impede, the
due administration” of the Tax Code, 26 U.S.C. § 7212(a). In
that case, Justice Thomas concluded that corruptly “requires
proof that the defendant not only knew he was obtaining an
unlawful benefit, but that his objective or purpose was to obtain
that unlawful benefit.” 138 S. Ct. at 1114 (Thomas, J.,
dissenting) (cleaned up); accord United States v. Floyd, 740
F.3d 22, 31 (1st Cir. 2014). But the allowance for mistake of
law as a complete defense in the tax context reflects “special
treatment of criminal tax offenses … due to the complexity of
the tax laws.” Cheek v. United States, 489 U.S. 192, 200
(1991). The concurrence’s approach thus requires
transplanting into section 1512(c)(2) an interpretation of
corruptly that appears to have been used so far only in tax law.
The concurrence’s approach is driven by a laudable goal—
narrowing what the concurrence recognizes would otherwise
be the “breathtaking” and untenable scope of the government’s
interpretation of section 1512(c). Ante at 1, 3 n.1, 14–15, 22
n.10 (opinion of Walker, J.). But even with the concurrence’s
torqued-up mens rea, section 1512(c)(2) still would have
improbable breadth. It would continue to supercharge
comparatively minor advocacy, lobbying, and protest offenses
into 20-year felonies, provided the defendant knows he is
acting unlawfully in some small way. The concurrence
imagines a protestor unaware that federal law prohibits
picketing outside the home of a judge to influence his or her
votes. 18 U.S.C. § 1507. But even that hypothetical protestor
would be protected only until the jurist, a neighbor, or the
7
Both opinions included partial concurrences, but the relevant
discussion in each one occurred in a partial dissent. See Aguilar, 515
U.S. at 609–12 (Scalia, J.); North, 910 F.2d at 938–46 (Silberman,
J.).
37
police told the protestor what the law is. After that, the
concurrence’s position would expose the protestor not only to
the one-year sentence set forth in section 1507, but also to the
twenty-year sentence set forth in section 1512(c).
Finally, my colleagues’ approach creates vagueness
problems as well as First Amendment ones. Consider 18
U.S.C. § 1505, which imposes criminal penalties on anyone
who “corruptly … influences, obstructs, or impedes” a
congressional inquiry. In Poindexter, we held this provision
unconstitutionally vague as applied to acts of lying to
Congress. 951 F.2d at 379. In rejecting the government’s
argument that the mens rea requirement sufficiently narrowed
the statute, we explained that “on its face, the word ‘corruptly’
is vague,” id. at 378, as were the string of adjectival synonyms.
See id. at 379 (“Words like ‘depraved,’ ‘evil,’ ‘immoral,’
‘wicked,’ and ‘improper’ are no more specific—indeed they
may be less specific—than ‘corrupt.’”). To cure the vagueness,
we limited the act component of section 1505. Specifically, we
held that it applies only to acts causing a third party to violate
some legal duty, thus excluding acts by which the defendant
directly attempts to influence the proceeding. Id. at 379–86.
But this saving construction is not available here. As explained
earlier, one thing section 1512(c) clearly did is break down the
distinction between direct and indirect obstruction. So, if
subsection (c)(2) covers all obstructive acts, direct and indirect,
it has the same breadth that caused the Poindexter court to find
unconstitutional vagueness. And as with the First Amendment
objection, it is no answer to say that section 1512(c) may be
constitutionally applied to the extreme conduct alleged here.
That is true, but the government’s construction still creates
improbable breadth and a host of unconstitutional applications
in other cases, even with the requirement of acting “corruptly.”
38
In sum, there is no plausible account of how section
1512(c)(2) could sweep in these defendants yet provide
“significant guardrails” through its requirement of acting
“corruptly,” ante at 16. Rather than try to extract meaningful
limits out of that broad and vague adverb, we should have
acknowledged that Congress limited the actus reus to conduct
that impairs the integrity or availability of evidence.
G
If there were any remaining doubt, the rule of lenity would
resolve this case for the defendants. At a high level of
generality, the rule has provoked recent controversy. Some
justices think it applies “[w]here the traditional tools of
statutory interpretation yield no clear answer.” Wooden v.
United States, 142 S. Ct. 1063, 1085–86 (2022) (Gorsuch, J.,
concurring in the judgment). Others think it applies “only
when after seizing everything from which aid can be derived,
the statute is still grievously ambiguous.” Id. at 1075(Kavanaugh, J., concurring) (cleaned up). Regardless of that
ongoing debate, the rule of lenity applies here.
In the specific context of obstruction of justice, the
Supreme Court repeatedly has emphasized the need for
caution. For example, Yates involved another Sarbanes-Oxley
provision that prohibits knowingly concealing or making a
false entry in any record, document, or tangible object. 18
U.S.C. § 1519. The Court refused to construe the provision as
“an all-encompassing ban on the spoliation of evidence,”
citing, among other factors, its “position within Chapter 73 of
Title 18.” 574 U.S. at 540 (plurality); see also id. at 549–52
(Alito, J., concurring in the judgment). In Marinello, the Court
rejected a reading of the Internal Revenue Code that would
“transform every violation of the Tax Code into an obstruction
charge.” 138 S. Ct. at 1110. And in Arthur Andersen, the Court
39
held that “restraint [was] particularly appropriate” to avoid
reading an obstruction statute to criminalize comparatively
innocuous acts of persuasion. 544 U.S. at 703–04. In all three
cases, the Court applied the rule of lenity. See Yates, 574 U.S.
at 548 (plurality); Marinello, 138 S. Ct. at 1106; Arthur
Andersen, 544 U.S. at 703–04. The Supreme Court’s message
in these and other cases has been “unmistakable: Courts should
not assign federal criminal statutes a ‘breathtaking’ scope when
a narrower reading is reasonable.” United States v. Dubin, 27
F.4th 1021, 1041 (5th Cir. 2022) (Costa, J., dissenting). By
glossing over section 1512(c)(2)’s ambiguity and adopting an
all-encompassing interpretation, my colleagues diverge from
the approach reflected in these cases.
V
The conduct alleged here violates many criminal statutes,
but section 1512(c) is not among them. Because my colleagues
conclude otherwise, I respectfully dissent.
40
Appendix — 18 U.S.C. § 1512§ 1512. Tampering with a witness, victim, or an
informant
(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
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 (3).
(2) Whoever uses physical force or the threat of physical force
against any person, or attempts to do so, with intent to--
(A) influence, delay, or prevent the testimony of any
person in an official proceeding;
(B) cause or induce any person to--
(i) withhold testimony, or withhold a record,
document, or other object, from an official
proceeding;
(ii) alter, destroy, mutilate, or conceal an object with
intent to impair the integrity or availability of the
object for use in an official proceeding;
(iii) 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
(iv) be absent from an official proceeding to which
that person has been summoned by legal process; or
41
(C) 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, supervised release, parole, or
release pending judicial proceedings;
shall be punished as provided in paragraph (3).
(3) The punishment for an offense under this subsection is--
(A) in the case of a killing, the punishment provided
in sections 1111 and 1112;
(B) in the case of--
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against
any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against
any person, imprisonment for not more than 20 years.
(b) Whoever knowingly uses intimidation, 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
42
(D) be absent from an official proceeding to which
such person has been summoned by legal process; or
(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, supervised release, parole, or
release pending judicial proceedings;
shall be fined under this title or imprisoned not more than 20
years, or both.
(c) Whoever corruptly--
(1) alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so, with the
intent to impair the object’s integrity or availability for use
in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official
proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20
years, or both.
(d) Whoever intentionally harasses another person and thereby
hinders, delays, prevents, or dissuades any person from--
(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the
United States the commission or possible commission of a
Federal offense or a violation of conditions of probation,
supervised release, parole, or release pending judicial
proceedings;
(3) arresting or seeking the arrest of another person in
connection with a Federal offense; or
(4) causing a criminal prosecution, or a parole or probation
revocation proceeding, to be sought or instituted, or
assisting in such prosecution or proceeding;
43
or attempts to do so, shall be fined under this title or imprisoned
not more than 3 years, or both.
(e) In a prosecution for an offense under this section, it is an
affirmative defense, as to which the defendant has the burden
of proof by a preponderance of the evidence, that the conduct
consisted solely of lawful conduct and that the defendant's sole
intention was to encourage, induce, or cause the other person
to testify truthfully.
(f) For the purposes of this section--
(1) an official proceeding need not be pending or about to
be instituted at the time of the offense; and
(2) the testimony, or the record, document, or other object
need not be admissible in evidence or free of a claim of
privilege.
(g) In a prosecution for an offense under this section, no state
of mind need be proved with respect to the circumstance--
(1) that the official proceeding before a judge, court,
magistrate judge, grand jury, or government agency is
before a judge or court of the United States, a United States
magistrate judge, a bankruptcy judge, a Federal grand jury,
or a Federal Government agency; or
(2) that the judge is a judge of the United States or that the
law enforcement officer is 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 adviser or consultant.
(h) There is extraterritorial Federal jurisdiction over an offense
under this section.
(i) A prosecution under this section or section 1503 may be
brought in the district in which the official proceeding (whether
or not pending or about to be instituted) was intended to be
44
affected or in the district in which the conduct constituting the
alleged offense occurred.
(j) If the offense under this section occurs in connection with a
trial of a criminal case, 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.
(k) Whoever conspires to commit any offense under this
section shall be subject to the same penalties as those
prescribed for the offense the commission of which was the
object of the conspiracy.