United States of America, Plaintiff-appellee, v. Herbert A. Howard and Elmer Gary Ritter, Defendants-appellants, 569 F.2d 1331 (5th Cir. 1978)

Herbert Howard and Gary Ritter were convicted of conspiring to obstruct the "due administration of justice" under 18 U.S.C. § 1503. Their specific offense was an attempt to sell transcripts of secret grand jury testimony to persons under investigation for suspected violations of federal banking laws. Aside from several minor contentions, which we will discuss later, defendants' various arguments on appeal boil down to the same complaint: that the statute under which they were charged and convicted does not cover the sale of grand jury testimony, or at least does not do so with the clarity demanded by the due process clause.

Section 1503 can be divided into two parts: its specific language, which forbids the influencing, intimidation, or impeding of any witness, juror, or court official, and its concluding omnibus clause, which punishes the influencing, obstruction, or impeding of the due administration of justice.¹  Invoking ejusdem generis, defendants argue that the statute's specific language limits the omnibus clause so that "obstructing the due administration of justice" means influencing witnesses, jurors, and officials in ways other than, and similar to, those expressly enumerated in the first part of the section. Only one court has so applied ejusdem generis to section 1503, reading the omnibus clause to prohibit acts similar in manner to those prescribed by the statute's specific language. See United States v. Metcalf, 435 F.2d 754, 756-57 (9th Cir. 1970).²  We cannot agree with this reading of the statute because it renders the omnibus clause superfluous, see United States v. Walasek, 527 F.2d 676, 679 & n.11 (3d Cir. 1975), and because the most natural construction of the clause is that it prohibits acts that are similar in result, rather than manner, to the conduct described in the first part of the statute.³  Whatever can be accomplished through intimidating or influencing a witness, juror, or court official is labeled by section 1503 as an obstruction of justice, for the reason that each of these actors has certain duties imposed by law, and the interference with his performance of these duties necessarily disrupts the processes of the criminal justice system.⁴  Crucial to an understanding of the instant case is the realization that this same interference can occur despite the absence of any personal contact with a juror, witness, or official. For example, persons violate section 1503 when they destroy evidence relevant to a judicial proceeding,⁵  which demonstrates that the statute is concerned not only with protecting witnesses, jurors, and court officials but also with preventing "miscarriage(s) of Justice." Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S. Ct. 129, 86 L. Ed. 530 (1941). See note 3 supra. Using threats to prevent a grand jury witness from testifying has the result of destroying evidence; so does the burning of transcripts of that testimony, and both acts obstruct the administration of justice. The use of threats against a witness falls under the specific language of section 1503, while the destruction of documents comes under the omnibus clause.

Ample authority supports our reading of the statute. Language in United States v. Partin, 552 F.2d 621, 631 (5th Cir.), cert. denied, --- U.S. ----, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977), suggests that the specific wording of section 1503 was intended to forbid certain means of obstructing justice, while the omnibus clause aims at obstruction of justice itself, regardless of the means used to reach that result.⁶  Accord United States v. Siegel, 152 F. Supp. 370, 373 (S.D.N.Y. 1957), aff'd, 263 F.2d 530 (2d Cir.), cert. denied, 359 U.S. 1012, 79 S. Ct. 1147, 3 L. Ed. 2d 1035 (1959). Similarly, in Cole v. United States, 329 F.2d 437 (9th Cir.), cert. denied, 377 U.S. 954, 84 S. Ct. 1630, 12 L. Ed. 2d 497 (1964), the court quoted with approval the following statement from the appellant's brief: " 'the limitation on the literal language of the statute (18 U.S.C. § 1503) must be that only that is proscribed which produces or which is capable of producing an effect that prevents justice from being duly administered.' " 329 F.2d at 439 (emphasis deleted). Moreover, numerous cases have interpreted section 1503 as covering all interferences with the administration of justice regardless of the means employed. United States v. Walasek, 527 F.2d at 681, quoting United States v. Solow, 138 F. Supp. 812, 814 (S.D.N.Y. 1956); United States v. Cohn, 452 F.2d 881, 882-83 (2d Cir. 1971), cert. denied, 405 U.S. 975, 92 S. Ct. 1196, 31 L. Ed. 2d 249 (1972); Falk v. United States, 370 F.2d 472, 476 (9th Cir. 1966), cert. denied, 387 U.S. 926, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967); Catrino v. United States, 176 F.2d 884, 887 (9th Cir. 1949); United States v. Rosner, 352 F. Supp. 915, 919 (S.D.N.Y. 1972), aff'd, 485 F.2d 1213 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S. Ct. 3080, 41 L. Ed. 2d 672 (1974) (holding attempt to obtain secret grand jury documents covered by section 1503). Accord United States v. Carlson, 547 F.2d 1346, 1359 n.13 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S. Ct. 2174, 53 L. Ed. 2d 224 (1977) (stating that section 1503 proscribes "the directing of threats against witnesses or otherwise impeding the administration of justice").

Applying our interpretation of section 1503 to the instant case, we observe that the statute clearly forbids one to bribe or to coerce a judge into ordering disclosure of secret grand jury testimony.⁷  To do so would constitute an interference with the performance of a duty imposed upon the judge by Rule 6(e) of the Federal Rules of Criminal Procedure, which dictates the secrecy of grand jury proceedings. The important reasons for enforcing this secrecy have been stated often:

"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077 (1958), quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954). Accord Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S. Ct. 965, 25 L. Ed. 2d 127 (1970); 1 C. Wright, Federal Practice & Procedure: Criminal § 106, at 170 (1969). If bribing a judge to disclose secret grand jury material constitutes an obstruction of justice, then so does appropriation and disclosure of that material, for the result is the same, the secrecy of the proceeding is breached. The accomplishment of this result through threats or bribes falls within the specific language of section 1503, while violating the secrecy of the proceeding by selling the confidential matter comes under the omnibus clause, which proscribes any conduct that has the same effect as the specific acts enumerated in the first part of section 1503.

Our interpretation of section 1503 as applied to this case is confirmed by legislative history. Section 1503 originated as the second section of the Act of March 2, 1831, 4 Stat. 487. The first section of that Act is now 18 U.S.C. § 401. The purpose of the entire Act was to punish various conduct committed in contempt of court; present section 401 was intended to cover contempts that occurred within the court's presence, while present section 1503 was aimed at out-of-court contempts. United States v. Harris, 558 F.2d 366, 368 (7th Cir. 1977); United States v. Walasek, 527 F.2d at 680; United States v. Essex, 407 F.2d 214, 216-17 (6th Cir. 1969). In its current form, section 401 proscribes disobedience or resistance to a court rule, such as Rule 6(e), which requires grand jury proceedings to be secret. Since Howard and Ritter defied Rule 6(e) by selling the transcripts, they committed a contempt as defined by section 401, see United States v. Friedman, 445 F.2d 1076, 1078 (9th Cir.), cert. denied, 404 U.S. 958, 92 S. Ct. 326, 30 L. Ed. 2d 275 (1971) (indictment and conviction under section 401 for possessing and disclosing unreleased grand jury transcripts); and since their contempt was perpetrated out of court, it falls within the prohibitions of section 1503. See Nye v. United States, 313 U.S. 33, 48-49, 61 S. Ct. 810, 85 L. Ed. 1172 (1941).⁸ 

If the key to the meaning of section 1503 were embedded in the legislative history just discussed, we would tend to agree with the defendants' claim that the statute, as applied to them, is unconstitutionally vague.⁹  The legislative history, however, serves merely to confirm the natural construction of the statute, upon which we elaborated earlier. At the very least, Howard and Ritter must have known that they could not influence an official to release the transcripts and, for that reason, must have recognized that to breach the secrecy of the grand jury proceeding would constitute an obstruction of justice under section 1503. Since the omnibus clause of the statute quite clearly proclaims that all obstructions of justice are prohibited, we conclude that section 1503 gives "fair notice of the offending conduct" in this case, Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972), which is all the constitution requires, see Rowan v. United States Post Office Department, 397 U.S. 728, 740, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970); United States v. Harriss, 347 U.S. 612, 617-18, 74 S. Ct. 808, 98 L. Ed. 989 (1954). Accord Anderson v. United States, 215 F.2d 84 (6th Cir.), cert. denied, 348 U.S. 888, 75 S. Ct. 208, 99 L. Ed. 698 (1954) (upholding section 1503 against challenge for vagueness).

We now turn to defendants' lesser arguments, two of which overlap. First, Howard and Ritter claim that their actions did not affect the outcome of the grand jury investigation. This claim is meaningless, not only because success is irrelevant under section 1503, see United States v. Russell, 255 U.S. 138, 143, 41 S. Ct. 260, 65 L. Ed. 553 (1921); United States v. Roe, 529 F.2d 629, 632 (4th Cir. 1975); United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir.), cert. denied, 419 U.S. 917, 95 S. Ct. 195, 42 L. Ed. 2d 155 (1974), but also because defendants are misreading the statute. Section 1503 does not forbid interferences with doing "justice," in the sense of "fairness" and "rightness," although undoubtedly it has an effect to do so. Instead, it forbids interferences with the "administration of justice," which means judicial procedure. See United States v. Partin, 552 F.2d at 641; United States v. McLeod, 119 F. 416, 418 (C.C.N.D. Ala. 1902). Section 1503 is a contempt statute, United States v. Walasek, 527 F.2d at 680; United States v. Essex, 407 F.2d at 218, and as such is directed at disruptions of orderly procedure. Thus, it is wholly irrelevant whether defendants' actions had any ultimate effect on the outcome of the grand jury investigation: the question is whether they disturbed the procedure of the investigation.¹⁰  Howard and Ritter next claim that their case is controlled by Ethridge v. United States, 258 F.2d 234 (9th Cir. 1958), and United States v. Campbell, 350 F. Supp. 213 (W.D. Pa. 1972), in both of which cases convictions under section 1503 were reversed on the ground that the defendants had merely attempted "shakedowns," that is, they had no intention of carrying out the obstruction of justice they promised to perform for pay. One can readily see the distinction between these two cases and the instant one. Howard and Ritter not only promised to deliver the transcripts, they actually carried out their promise.

Defendants' final contention disregards clear authority. Because section 1503 forbids interference with the "administration of justice," a prerequisite of its violation is a pending criminal proceeding. United States v. Walasek, 527 F.2d at 678; United States v. Ryan, 455 F.2d 728, 733 (9th Cir. 1972). See Pettibone v. United States, 148 U.S. 197, 206, 13 S. Ct. 542, 37 L. Ed. 2d 419 (1893); United States v. Koehler, 544 F.2d 1326 (5th Cir. 1977); United States v. Baker, 494 F.2d 1262, 1265 (6th Cir. 1974). Defendants argue that grand jury investigation is not a requisite criminal proceeding, but the case law instructs otherwise. See United States v. Walasek, 527 F.2d at 678; United States v. Campanale, 518 F.2d 352, 366 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S. Ct. 777, 46 L. Ed. 2d 638 (1976); United States v. Marrionneaux, 514 F.2d 1244, 1249 (5th Cir. 1975); United States v. Knohl, 379 F.2d 427 (2d Cir.), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967). These cases are clearly correct because section 1503 specifically refers to grand jurors.

AFFIRMED.