Obstruction of Justice: Unwarranted Expansion of 18 U.S.C. (Section) 1512(c)(1)

By Schrup, Sarah O'Rourke | Journal of Criminal Law and Criminology, Winter 2012 | Go to article overview

Obstruction of Justice: Unwarranted Expansion of 18 U.S.C. (Section) 1512(c)(1)


Schrup, Sarah O'Rourke, Journal of Criminal Law and Criminology


This Article suggests that prosecutors are misusing and courts are misinterpreting the Sarbanes-Oxley obstruction of justice statute, 18 U.S.C. [section] 1512(c)(1). As a result, the statute is being applied far beyond the corporate fraud or even general fraud context to conduct that Congress never intended to punish with this statute. Such an expansive interpretation lays bare the ambiguity inherent in the statutory language. A proper statutory construction that explores the statute itself, related provisions, canons of construction, the legislative history, and the investigatory process at the Securities and Exchange Commission shows that Congress could not have intended the limitless sweep of the statute that some courts and prosecutors have fashioned. In fact, an expansive definition of the terms within [section] 1512(c)(1) carries with it a host of unintended and unwanted results. Specifically, such an interpretation is at odds with congressional intent, creates absurdities and unfair sentencing disparities, renders the statute void for vagueness, and encourages judicial and executive legislating. Courts should recognize and limit efforts to expand [section] 1512(c)(1)'s reach.

I. INTRODUCTION

In response to the 2001 and 2002 accounting scandals involving corporate luminaries such as Enron, WorldCom, Global Crossing, and Adelphia, Congress passed the Sarbanes-Oxley Act of 2002 (Act). (1) Although the Act's preamble is clear that the bill was designed to "protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws," (2) prosecutors have since its enactment endeavored to expand its reach far beyond the corporate fraud context. Specifically, prosecutors have used its obstruction of justice provision in 18 U.S.C. [section] 1512(c)(1) in a host of other types of cases, including garden-variety drug possession, (3) police misconduct, (4) and even when a defendant burned the body of a murder victim to conceal his crime. (5) And courts, perhaps unwittingly, have sanctioned this expansive use of [section] 1512(c)(1)'s provisions. This expansion is not only unsupportable under a proper construction of the Sarbanes-Oxley Act, but it creates absurdities in application and renders the statute void for vagueness.

This Article posits that courts should reject prosecutorial efforts to expand the reach of Sarbanes-Oxley into drug crimes, which are clearly beyond its plain terms and the legislature's intent. A proper construction of 18 U.S.C. [section] 1512(c)(1) and the Sarbanes-Oxley Act generally shows that Congress intended to combat corporate fraud--or at most fraud generally-and not other types of crimes. Part II of the Article conducts an in-depth statutory construction of [section] 1512(c)(1) by reviewing its language, structure, related provisions, canons of construction, legislative history, and the traditional SEC investigations process. Part III then examines how prosecutors have used, and courts have interpreted, [section] 1512(c)(1) in the ten years since its enactment. In Part IV, the Article demonstrates how this unwarranted expansion of [section] 1512(c)(1) leads to absurd and unintended results, and is wrong as a matter of policy. And Part V concludes by arguing that the government should abandon its use of [section] 1512(c)(1) beyond fraud crimes.

II. THE PROPER CONSTRUCTION OF [section] 1512(C)(1)

Section 1512(c)(1) criminalizes an individual's conduct if that person "corruptly--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." (6) As discussed in more detail below, (7) this provision suffers from at least two textual ambiguities. First, the scope of the phrase "other object" is uncertain. Second, the specificity and temporal reach of the "official proceeding" impacts the statute's breadth. …

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