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Obstruction of Justice - Other Obstruction Provisions

federal witness section defendant

Certain conduct that might be prosecuted under chapter 73 of title 18, as well as certain obstructive conduct that for technical reasons cannot be reached under those provisions, can be charged under various other statutes scattered throughout the criminal code and elsewhere. Thus, for example, even as the Supreme Court rejected the use of section 1503 against the federal district judge in Aguilar, it upheld his conviction under title 18, section 2232(c), which allows the prosecution of someone who reveals information about a federal electronic surveillance authorization or application "in order to obstruct, impede, or prevent such interception." Title 26, section 7212 reaches efforts to obstruct and impede the due administration of the Internal Revenue laws. The federal bribery, perjury, and contempt statutes may also be used against certain obstructive conduct, as can the criminal civil rights statutes, which have been invoked to prosecute efforts to deprive someone of his right to be a federal witness.

Even where a defendant has not been charged with any sort of an obstruction offense, he can, if convicted, still have his sentence increased under section 3C1.1 of the Federal Sentencing Guidelines for "obstructing or impeding the administration of justice during the investigation, prosecution, or sentencing" of his offense of conviction. This provision is frequently used by courts to enhance the sentence of defendants found to have perjured themselves while testifying at trial.

Federal evidentiary doctrine has also been designed to deter interested parties from using force, fraud, or intimidation to keep witnesses from testifying. If a defendant, in any sort of prosecution, is found by the trial judge (using a preponderance of the evidence standard) to be responsible for a witness's absence, the defendant will be deemed to have waived his constitutional right to confrontation and his hearsay objections with respect to the missing witness. This means, for example, that statements that the witness made to the government before he disappeared can now be used against the defendant.

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