19.5 Obstruction of Justice—Official Proceeding (18 U.S.C. § 1512(c))

Comment

 Section 1512(c)(2) prohibits impairing “the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1)” and “the availability or integrity of other things used in an official proceeding beyond the ‘record[s], document[s], or other object[s]’ enumerated in (c)(1), such as witness testimony or intangible information,” but does not extend to other obstructive conduct. Fischerv. United States, 603 U.S. __, 144 S. Ct. 2176, 2185-86 (2024).

Section 1512(c)(2) “requires a showing of nexus,” namely that “(1) the obstructive conduct be connected to a specific official proceeding that was (2) either pending or was reasonably foreseeable to the defendant when he engaged in the conduct.”  United State v. Lonich, 23 F.4th 881, 905 (9th Cir. 2022) (alterations omitted) (quoting United State v. Young, 916 F.3d 368, 385 (9th Cir. 2019)). 

See Comment to Instruction 4.12 (Corruptly).  Although the Ninth Circuit has not yet defined “corruptly” for purposes of § 1512(c), the court has “affirmed an instruction stating that ‘“corruptly” meant acting with “consciousness of wrongdoing”’ because it, ‘if anything, . . . placed a higher burden of proof on the government than [§] 1512(c) demands.’”  Lonich, 23 F.4th at 906 (quoting United States v. Watters, 717 F.3d 733, 735 (9th Cir. 2013)).

Revised Sep 2024