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Obstruction of Justice - Witness Tampering And Retaliation

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In contrast with the broad language of section 1503, sections 1512 and 1513 were designed to directly address efforts to tamper with or obstruct potential or actual witnesses or informants or to retaliate against witnesses, victims, or parties for their participation in federal investigations or legal proceedings. The range of conduct addressed by section 1512 is broad and includes intimidation, physical force, threats, misleading conduct, and harassment. Under prevailing case law, a defendant need not have realized that the witness he targeted was to be a federal witness.

These provisions of the Victim and Witness Protection Act filled some gaps in section 1503's coverage. They can, for instance, be used against an effort to tamper with a potential witness at a time when no official proceeding was pending. They are limited, however, by their concern with the welfare of witnesses, not the integrity of proceedings per se. The defendant who persuades a witness to mislead a grand jury, for example, has not violated section 1512, unless his conduct involves some effort to mislead the witness as well. In cases where the 1982 provisions and section 1503 both appear to apply, the result is somewhat unclear: Courts have disagreed on whether section 1503's omnibus clause can still be used to prosecute witness tampering and retaliation, now that sections 1512 and 1513 more specifically address such conduct.

In prosecutions under section 1512 for witness tampering, the government need not show that the witness was actually intimidated. It is enough that the defendant's threats had a tendency to intimidate. And while section 1512(b) requires a showing of specific intent to influence a witness, the prosecution only has to show that the defendant was aware of the natural and probable consequences of his conduct toward the witness. As with section 1503, the penalties for violations of sections 1512 and 1513 are keyed to the harm a defendant has inflicted and the nature of the proceedings.

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