On October 20, 2023, in the case of U.S. v. Robertson, 2023 U.S. App. LEXIS 27878, ___4th __, 2023, WL 6932346 (D.C. Cir., Oct. 20, 2023), a 2–1 majority in the U.S. District for the Court of Appeals for the District of Columba Circuit, ruled in favor of the Justice Department’s interpretation of the word “corruptly.” The court interpreted a subsection of Title 18 U.S.C. § 1512, that prohibits witness tampering by anyone who “corruptly . . . obstructs, influences or impedes any official proceeding or attempting to do so.” 18 U.S.C. §1512(c)(2). The charge, which is the subject of the appeal, alleged that Robertson “corruptly” obstructed, influenced, or impeded the vote certification for president on January 6, 2021.
In Robertson, the court held that the word “corruptly” in the statute should be construed as whether a defendant’s actions were unlawful and held that there was no additional requirement that the defendant was acting for personal gain. The court said that the majority of the court held that the “personal gain” element applied to bribery and tax cases but not to a charge under 18 U.S.C. § 1512(c)(1).
The dissenting opinion stated that, relying on another case decided previously in the D.C. Circuit, U.S. v. Fischer, as well as the dissenting opinion from Supreme Court Justice Antonin Scalia in U.S. v. Aguilar, an essential element was that the defendant was acting for “personal gain.”
Counsel, of course, should be aware of the Robertson opinion, which is lengthy and discusses how various federal courts of appeals have construed this particular statute. Slip Opinions at pp. 13–20. As the court noted, “Congress and the courts have, accordingly, both recognized that ‘corruptly’ in obstruction statutes can be proved in a variety of ways.” Slip Opinion at p. 20. It also cites cases defining “corruptly” as “depraved, evil or wrongful” regarding other obstruction statutes. See Slip Opinion at pp. 21–22.
Defense counsel should be well aware of how various courts have interpreted the word “corruptly,” not only in 18 U.S.C. § 1512(c)(1). In the Manual of Jury Instructions, Criminal 2022, for instance, the U.S. Court of Appeals for the Ninth Circuit states in section 4.12 regarding the definition of “corruptly”: “Consult each statute that uses the term ‘corruptly’ and related case law, for the meaning of the term because it is capable of different meanings in different statutory contexts.” The Ninth Circuit model instruction regarding the definition of “corruptly” states as follows: “In a prosecution under 18 U.S.C. §1512(c) making it a crime to corruptly obstruct, influence or impede any official proceeding, or attempt to do so, the District Court did not err by failing to include the words ‘evil’ and “wicked” in its instructions defining the word ‘corruptly;’ nor would it be error to omit these words when instructed on 18 U.S.C. §1512(b).” U.S. v. Watters, 717 F.3d 733, 735 (9th Cir. 2013).
If practitioners are interested in reading about this topic further, an excellent article on this subject is Connor Nelson, ‘“Corruptly” Continues Consistently Confounding Courts: A New Look at “Corruptly Persuades” in 18 U.S.C. §1512(B) Obstruction of Justice,’ 2021 ULR 479 (2021).
