THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Obstruction Of Justice (18 USC 1503) (Omnibus Clause)
1. Obstruction Of
Justice (18 USC 1503): General Considerations
2. If Decision To Modify
Procedural Course Of Case Came From Third
Party Defendant Is
Not Guilty Of Obstructing Justice
3. 18 USC 1503 Covers Only
Conduct That Is Related To A Pending Judicial Proceeding
4. Statute Forbids
Interference With The "Administration of Justice" Which
Means Judicial
Procedure
5. Statute Only Prohibits
Conduct Which Produces Or Which Is Capable Of Producing
Effect That
Prevents Justice From Being Duly Administered
6. Grand Jury
Investigation: Instructing Witness To Claim Privilege
Against
Self-incrimination
Is Obstruction Of
Justice Only If Done Corruptly And With Corrupt Motive
7. Obstruction Of Justice:
Right To Remain Silent
8. Obstruction Of Justice:
Freedom Of Expression
9. Agreement To Commit
Perjury Insufficient To Convict For Conspiracy
To Obstruct Justice
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Obstruction Of Justice (18 USC 1503): General Considerations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendants in this case are charged with conspiring and endeavoring to obstruct justice. These charges require that the defendants specifically intend to obstruct, impede, or otherwise interfere with the administration of justice. The specific mental state required for this particular crime is an intention on the part of the defendants that the administration of justice be interfered with, obstructed, or impeded. While it is not necessary that the defendants know that their acts violated a particular criminal statute, it is necessary that the government prove beyond a reasonable doubt that the defendants acted with the specific intent that I have just described. If you are unable to find beyond a reasonable doubt that the defendants acted with the specific intent of obstructing the administration of justice in this case, then you must find the defendants not guilty.
In determining what conduct of the defendants is alleged to have obstructed the administration of justice, you may be guided by the indictment. As I have already instructed you, the indictment is not evidence in the case but is merely the formal method of bringing charges into a courtroom. However, when the prosecution drafted this indictment, it identified the conduct of the defendants which it believes constitutes obstruction of justice. Thus, if you find from the evidence presented that the defendants did engage in the conduct identified by the indictment as obstructing justice and did so with the specific intent to obstruct justice, then you may find them guilty of the offenses charged. If you are unable to find such conduct and such intent beyond a reasonable doubt, then you must acquit the defendants.
AUTHORITIES:
United States v. Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, 104 S. Ct. 2344 (1984); United States v. Ryan, 455 F.2d 728 (9th Cir. 1972).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. If Decision To Modify Procedural Course Of Case Came From Third Party Defendant Is Not Guilty Of Obstructing Justice
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that in order to convict the defendants of either conspiring to obstruct justice or endeavoring to obstruct justice, you must find beyond a reasonable doubt that the defendants induced __________ (person allegedly induced) to modify the procedural course of (his/her) case. If the suggestion or encouragement to modify the procedural course of __________’s (person allegedly induced) case came from __________ (person allegedly induced) (himself/herself), then you may not find the defendants guilty of either of the counts of this indictment.
AUTHORITIES:
United States v. Neiswender, 590 F.2d 1269 (4th Cir.), cert. denied, 441 U.S. 963 (1979); Osborne v. United States, 385 U.S. 323 (1966).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. 18 USC 1503 Covers Only Conduct That Is Related To A Pending Judicial Proceeding
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The obstruction of justice statute, 18 U.S.C. §1503, covers only conduct that is related to a pending judicial proceeding. Accordingly, you may convict __________ (name of defendant) of endeavoring to obstruct justice only if you are able to find beyond a reasonable doubt that __________ (name of defendant) sought to have __________ (person allegedly induced) __________ (what person was allegedly induced to do e.g., withdraw his appeal which was then pending before the United States Court of Appeals for the Seventh Circuit). If you find that the suggestion of __________ (what person was allegedly induced to do) was prompted by __________ (person allegedly induced) (himself/herself) and not by the defendant, then you must acquit the defendant.
AUTHORITIES:
United States v. Howard, 569 F.2d 1331, 1336 n.9 (5th Cir. 1978); United States v. Walasek, 527 F.2d 676, 678 (3rd Cir. 1975); United States v. Ryan, 455 F.2d 728, 733 (9th Cir. 1972).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Statute Forbids Interference With The "Administration of Justice" Which Means Judicial Procedure
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that § 1503 of Title 18 does not forbid interferences with doing "justice," in the sense of "fairness" and "rightness." Instead, this statute forbids interference with the "administration of justice," which means judicial procedure.
Thus, even if you believe that the conduct engaged in by the defendant was neither "fair" nor "right," and even if you believe that his conduct may have interfered with doing "justice," you may not convict the defendant unless you find beyond a reasonable doubt that (his/her( conduct was an endeavor to interfere with judicial procedure in a then-pending judicial action.
AUTHORITY:
United States v. Howard, 569 F.2d 1331, 1337 (5th Cir. 1978).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Statute Only Prohibits Conduct Which Produces Or Which Is Capable Of Producing Effect That Prevents Justice From Being Duly Administered
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that the obstruction of justice statute prohibits only that conduct which produces or which is capable of producing an effect that prevents justice from being duly administered. Accordingly, if after your consideration of all the evidence in this case you have a reasonable doubt whether the conduct allegedly engaged in by __________ (name of defendant) produced or was capable of producing an effect that prevented justice from being duly administered, you must acquit (him/her).
AUTHORITIES:
United States v. Brand, 775 F.2d 1460 (11th Cir. 1985); United States v. Howard, 569 F.2d 1331, 1335 (5th Cir. 1978).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Grand Jury Investigation: Instructing Witness To Claim Privilege Against Self-incrimination Is Obstruction Of Justice Only If Done Corruptly And With Corrupt Motive
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Title 18, United States Code, Section 1503, makes it a federal crime or offense for anyone to corruptly influence, obstruct or impede or to corruptly endeavor to influence, obstruct or impede the due administration of justice.
In Count ___ the Defendant,__________ (name of defendant), has been charged with knowingly, willfully and corruptly influencing, obstructing and impeding the due administration of justice before a federal grand jury conducting an investigation into certain matters involving __________ (subject of investigation) and with endeavoring to influence, obstruct and impede the due administration of justice before said grand jury.
__________ (name of defendant) instructed __________ (name of witness) to exercise (his/her) Fifth Amendment privilege against self-incrimination and refuse to give testimony to the federal grand jury.
A defendant can be found guilty of this offense only if all the following facts are proved beyond a reasonable doubt:
(1) that a duly empaneled grand jury was conducting an investigation into certain matters involving __________ (subject of investigation) as alleged in Count ____;
(2) that __________ (name of defendant) did influence, obstruct or impede the grand jury investigation, or endeavored to do so;
(3) that __________ (name of defendant) did instruct __________ (name of witness) to exercise (his/her) privilege against self-incrimination and refuse to give testimony to the federal grand jury; and
(4) that defendant's acts were done knowingly and corruptly.
To act corruptly means to act knowingly and dishonestly with the specific intent to subvert or undermine the integrity of the grand jury investigation.
Instructing a witness to claim the privilege against self-incrimination is obstruction of justice only if done corruptly and with a corrupt motive.
AUTHORITIES:
Adopted from Eleventh Circuit Pattern Jury Instructions No. 56.1 [formerly 39.1]; United States v. Petzold, 788 F.2d 1478 (11th Cir. 1986); United States v. Fayer, 523 F.2d 660 (2d Cir. 1975).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Obstruction Of Justice: Right To Remain Silent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In your consideration of these obstruction of justice charges, you must not forget the freedoms protected by the Bill of Rights to our United States Constitution.
First, you should not attach a sinister or evil meaning to the exercise of a person's constitutional right under the Fifth Amendment to remain silent. The right of a suspected person to refuse to testify was so important to our Founding Fathers that they raised it to the dignity of a constitutional enactment. The right is one of the valuable prerogatives of our citizens. It should never be assumed that those who claim this privilege are either criminals or else perjurers, falsely claiming a danger of self-incrimination. A witness may have a reasonable fear of prosecution yet be innocent of wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.
The privilege against self-incrimination is a constitutional right guaranteed to the guilty and to the innocent. It is an essential safeguard in our system of justice. So, you should attach no stigma whatsoever to the fact that a defendant may have discussed this right to remain silent with a witness.
AUTHORITIES:
Slochower v. Bd. of Ed. of N.Y., 350 U.S. 551, 557-58 (1956); 5th amend., U.S. Const.
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Obstruction Of Justice: Freedom Of Expression
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You should remember that individuals are guaranteed precious liberties under the First Amendment to our Constitution. These rights include freedom of speech and freedom of association. Therefore, even if you were to find beyond a reasonable doubt that a particular defendant instructed a witness to exercise (his/her), the witness', Fifth Amendment right to remain silent in the grand jury room, you still would not be able to, and cannot, find such a defendant guilty unless you also found beyond a reasonable doubt that his advocacy of this conduct was directed to inciting and or producing imminent lawless action and was likely to incite or produce such action. In determining whether the defendant's advocacy is protected by our Constitution, you must consider all of the circumstances. Some of the factors you should take into account are (1) whether the defendant sought out the witness, or vise versa, (2) how the conversation developed, (3) the defendant's actual choice of words and use of language, (4) (his/her) tone of voice, loudness, and manner of speaking, (5) (his/her) degree of insistence, (6) all related behavior employed by (hi/her)m in urging silence, (7) whether the defendant also suggested perjury or deception, or instead only advocated the right to remain silent, (8) whether the defendant had sufficient command or influence over the witness to make it probable that (his/her) instructions would be followed, (9) whether the instruction to remain silent was in fact carried out, (10) whether the defendant believed the witness was about to appear before the grand jury, (11) whether the witness in fact was about to appear before the grand jury, and (12) whether the instruction urged silence even in the event the Court granted statutory use immunity to the witness and entered a compulsion order directing the witness to answer questions.
AUTHORITIES:
Brandenburg v. Ohio, 395 U.S. 444 (1969); United States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir. 1983); United States v. Wieschenberg, 604 F.2d 326, 331-32 (5th Cir. 1979); United States v. Dellinger, 472 F.2d 340, 393-94 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973); Tribe, American Constitutional Law §12-11 (1978); 1st amend., U.S. Const.
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Agreement To Commit Perjury Insufficient To Convict For Conspiracy To Obstruct Justice
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If the government has proven only that some persons agreed to commit perjury, then the government has not proved a conspiracy to obstruct justice and [defendant] must be found not guilty of that charge.
AUTHORITIES:
In re Michael, 326 U.S. 224, 227-28 (1945); United States v. Susskind, 965 F.2d 80, 85 (6th Cir. 1992); United States v. Rankin, 870 F.2d 109, 111 (3rd Cir. 1989); United States v. Griffin, 589 F.2d 200 (5th Cir.), cert. denied, 444 U.S. 825 (1979); United States v. Essex, 407 F.2d 214, 216-18 (6th Cir. 1969).
RELATED NCJIC MATERIALS:
See NCJIC 11.1.4 [Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice].
See generally NCJIC Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear.
See NCJIC 84.1.2.4 [Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory].
See NCJIC 84.1.2.5 [Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of Lawyer/Attorney As Defense Theory].
See NCJIC Federal Model Instructions by Offense: 18 USC 1503: Obstructing Due Administration Of Justice.