These consolidated appeals from convictions of police officers under 18 U.S.C. § 1512(b)(3) for providing false and misleading information concerning the death of a drug dealer to state investigators present the issue of whether statements suppressed in a prior civil rights trial pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967),
I. FACTUAL AND PROCEDURAL BACKGROUND
On Friday, December 16, 1988, defendants-appellants Nathaniel Veal, Jr., Andy Watson, Pablo Camacho, and Charlie Haynes, Jr., as well as Ronald Sinclair and Thomas Trujillo were members of the Street Narcotics Unit ("SNU") of the Miami Police Department. According to trial testimony, before the 4:00 P.M. roll call on that day, the Chief of Police received a letter in which an anonymous informant reported that unidentified drug dealers had met at 7th Avenue and 32nd Street, NW, in Miami and had contracted to kill Camacho. The SNU members were aware that this address was the residence of Leonardo Mercado, a drug dealer. Camacho, Veal, Watson and Haynes were told of the death threat.
En route to a sting operation at the proximate location of 7th Avenue and 57th Street, NW, Camacho and Watson, Veal and Haynes, and Sinclair and Trujillo, proceeding in three undercover vehicles, stopped at Mercado's house and exited their vehicles. Camacho approached Mercado, who was outside, put his hand on Mercado's shoulder, and escorted him into his house. In the next few minutes, the other officers entered the house, closed the door, and lowered the curtains. Shortly thereafter, police cars and a fire/rescue unit with emergency medical treatment arrived in response to calls for assistance from Sinclair and Camacho.
When Officer Mary Reed of the Miami Police Department arrived and entered the house, she saw Camacho, Veal, Haynes and Sinclair and a bloody Mercado lying on the floor moaning. Haynes pointed to Mercado and informed Reed that he was "the mother fucker that put a contract out on Camacho." Supp.R8-22. The officers urged Reed to "get [her] kick in," id. at 23, but she declined because "[h]e was in bad shape," id. at 24. Despite emergency medical efforts, Mercado, who had suffered extensive head trauma and a severely bruised chest, died at the scene. A subsequent autopsy revealed multiple bruises and bloody wounds to his head, scalp, neck, and face as well as fractured ribs.
Knowing that Mercado was dead, Camacho, Veal, Watson, Haynes, and other SNU officers left the scene and returned to the police department. Various eyewitnesses testified that they saw Camacho, Veal, Watson, Haynes, Sinclair and Trujillo when they returned to the police station, entered the lieutenant's office, and closed the door. Although none of these individuals had noticed anything unusual about Camacho's appearance when he entered the lieutenant's office, the witnesses saw a rip in the front, chest area of his shirt and on the sleeve when he left that office. While inside the SNU lieutenant's office, one of the officers took pictures of Camacho that purportedly reflected his condition after the altercation with Mercado. These photographs, showing a long rip in the front of Camacho's shirt, which also was missing a pocket, were placed in the lieutenant's cabinet together with a butcher knife, supposedly retrieved from the altercation scene, and a bag of crack cocaine allegedly seized from Mercado.
At 7:55 P.M. that evening, Camacho went to the office of crime-scene technician Sylvia Romans, who photographed arrestees and/or
A freelance photographer took random photographs at the Mercado residence after the altercation. One photograph showed Camacho at the doorway of Mercado's residence; his shirt was undamaged with no tear in the front, and the pocket was intact. The same freelance photographer came to the SNU office and took additional photographs of Camacho that showed a large rip in the front of his shirt that had been taped together and that the pocket was missing. When Camacho went to Romans's office a short time later to have her photograph him, the tape had been removed, the rips to his shirt were exposed, and there was no pocket on his shirt. Two visiting Detroit police officers accompanied the SNU lieutenant to Mercado's house. One testified that she saw an officer leaving the house with a rusty butcher knife. She saw a similar knife on the table in the lieutenant's office when the officers left that office.
At trial, an expert in fiber analysis was asked whether the tears to Camacho's shirt resulted from knife cuts or a tear. The expert testified that a mechanical object had been used to make a half-inch cut to the front of the shirt and that the shirt then had been ripped causing a fifteen-inch tear. The damage to the right sleeve also was consistent with the shirt having been cut with a mechanical object and then torn. Similarly, the damage to the pocket area was consistent with the pocket having been cut and then torn from the shirt.
Camacho later was treated at a hospital for elevated blood pressure and swelling; none of the other officers had any injuries. In the hours following Mercado's death, Miami homicide investigators were advised that Camacho had been involved in the altercation with Mercado but that Veal, Watson, Haynes and Sinclair had not. In the early morning hours of December 17, 1988, Veal, Watson, Haynes and Sinclair gave statements to state homicide investigators regarding their knowledge of the circumstances surrounding Mercado's death. Each asserted that the officers had stopped at Mercado's house because Camacho had seen some drug activity there that justified investigation and not because of the death threat to Camacho. Each denied having physical contact with Mercado or having heard or seen anything that would explain or assist the investigators in determining how Mercado's injuries had occurred. They stated that, by the time that they were inside the house, the altercation was over and Mercado was on the floor. Veal, Watson and Haynes also denied meeting with Camacho at the SNU office.
During trial, an expert in forensic serology and blood-stain-pattern interpretation compared the blood stains on Mercado to the blood stains on the clothing and shoes worn by Camacho, Veal, Watson and Haynes on December 16, 1988. Thus, he reconstructed who had come into contact with Mercado and the amount of force used during these contacts. The expert found that Veal's pants and shoes were covered with blood stains of Mercado's type. The blood spatter on Veal's pants and shoes was consistent with Veal's having struck Mercado multiple times using medium to medium-high force. The back of Veal's right shoe had a pattern consistent with having been stamped into Mercado's head multiple times. Additionally, shoe patterns on the seat and ankle areas of Mercado's pants matched Veal's right shoe.
Similarly, Watson's pants were bloodstained inside the cuffs and all the way up to the lap and pocket areas. The blood spatter on Watson's pants and sneakers was consistent with his having been within two to three feet of a direct impact to Mercado of medium to medium-high force. The location of the blood on Watson's pants and the spatter of Mercado's blood on two walls in the corner of the room above the bed was consistent with Watson's having been in the immediate vicinity of a direct blow to Mercado's head while Mercado was in an upright position in the corner of the room near the bed and not after Mercado was on the floor. A criminology
Haynes's left shoe had blood on it, and his shirt had one blood spot. His pants, however, had no blood stains because he had laundered his pants and shoe laces before being asked to surrender them. A criminology expert testified that the wounds on Mercado's forehead and left cheek near his eye matched Haynes's left shoe and were consistent with a single contact.
On Monday, December 19, 1988, Federal Bureau of Investigation ("FBI") Agent David Hedgecock, assigned to the civil rights unit in Miami, learned of the incident resulting in Mercado's death and opened an investigation in conjunction with Miami Police Department homicide detectives. This investigation led to federal, civil rights charges against Camacho, Veal, Watson, Haynes, Sinclair and Trujillo. In conducting the FBI investigation, Hedgecock received, reviewed, and used all of the evidence collected by the state, including the officers' statements, Romans's photographs of Camacho, and all other physical evidence. The officers were charged with infringing Mercado's civil rights in violation of 18 U.S.C. §§ 241 and 242.
In the federal civil rights case that was tried in 1990, the officers moved pursuant to Garrity to suppress their statements concerning the circumstances of Mercado's death. The district judge granted the officers' suppression motions because he determined that the statements made by Veal, Watson and Haynes resulting from questioning at the police station and with the advice of counsel were within the scope of Garrity.
In July, 1993, a federal grand jury in the Southern District of Florida indicted Camacho, Veal, Watson, and Haynes.
All of the officers moved to dismiss Count II because it failed to allege facts sufficient to constitute a violation of 18 U.S.C. § 1512(b)(3). The district judge denied those motions. Veal, Watson and Haynes moved to suppress their statements that had been suppressed under Garrity in the civil rights trial. The district judge also denied those motions.
Following a ten-week trial, Camacho, Veal, Watson and Haynes were convicted on Count II and acquitted on all other counts. The district judge denied their motions for judgments notwithstanding the verdict and/or for a new trial. Camacho was sentenced to thirty months of imprisonment and two years of supervised release. Veal, Watson and Haynes were each sentenced to twenty-one months of imprisonment and two years of supervised release. All remain on bond pending appeal.
On appeal, Veal, Watson and Haynes challenge the district judge's denial of their motions to suppress their statements after Mercado's death because the same judge had suppressed those statements under Garrity
A. Admission of Statements Previously Suppressed Under Garrity
Veal, Watson and Haynes argue that the district judge erred by permitting the government to use their statements concerning Mercado's death in the obstruction of justice trial when that judge had suppressed those statements under Garrity in the civil rights trial. In Garrity, the Supreme Court held that Fifth Amendment protections apply to police officers subjected to interrogation by other law enforcement officers and that incriminating statements made under threat of termination for remaining silent are inadmissible in a subsequent criminal prosecution concerning the matter of inquiry absent a knowing and voluntary waiver.
Camacho, 739 F.Supp. at 1520. The district judge reasoned that, because counsel had informed the officers "that they must give statements and answer every question put by the investigators, that they could not invoke the Fifth Amendment, and that they had Garrity immunity," id. at 1517-18, the officers "reasonably believed that they were compelled to waive their Fifth Amendment rights during their interviews with the investigating officers," id. at 1518.
In the obstruction case, the government alleged that the officers had acted individually and collectively to impede the official investigation into the death of Mercado. Veal, Watson and Haynes sought suppression of their statements made to state investigating officials at police headquarters on December 17, 1988.
Veal, Watson and Haynes contend that their statements suppressed in the civil rights trial were per se inadmissible in the obstruction of justice trial. They argue that statements declared to be protected by Garrity are forever barred from use in any prosecution, including one for perjury, false statements, or obstruction of justice.
In determining whether the government may use Garrity statements in a subsequent federal, criminal prosecution, we note that the Supreme Court has been resolute in holding that the Fifth Amendment does not shield perjured or false statements. Concerning false testimony before a grand jury, the Court spoke clearly and strongly:
United States v. Mandujano, 425 U.S. 564, 576, 582, 96 S.Ct. 1768, 1776, 1779, 48 L.Ed.2d 212 (1976) (emphasis added); see United States v. Wong, 431 U.S. 174, 178, 97 S.Ct. 1823, 1825, 52 L.Ed.2d 231 (1977) (regarding false, grand jury testimony about bribing undercover police officers, the Court emphasized that "the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it `does not endow the person who testifies with a license to commit perjury.'") (quoting Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 73, 56 L.Ed. 128 (1911)); see also United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 366, 24 L.Ed.2d 275 (1969) (explaining that the predicament of having to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury or answering falsely in a case involving filing a false tax return, the Court concluded that the defendant took "a course that the Fifth Amendment gave him no privilege to take"). Using this authority, our court declined to suppress false grand jury testimony and upheld a conviction under 18 U.S.C. § 1623 for perjury. See United States v. Olmeda, 839 F.2d 1433, 1435-37 (11th Cir.1988); see also LaChance v. Erickson, ___ U.S. ___, ___, 118 S.Ct. 753, 756, 139 L.Ed.2d 695 (1998) ("It is well established that a criminal defendant's right to testify does not include the right to commit perjury.").
Even in the case of statutorily immunized testimony, the "Court has never held ... that the Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony.... [N]either the immunity statute nor the Fifth Amendment precludes the use of respondent's immunized testimony at a subsequent prosecution for making false statements." United States v. Apfelbaum, 445 U.S. 115, 125, 131, 100 S.Ct. 948, 954, 957, 63 L.Ed.2d 250 (1980).
Like false testimony before a grand jury, the Court has not excluded from criminal liability false statements made to government agents or agencies, whether or not those statements were made under oath. In upholding a conviction for falsely denying Communist affiliation in an affidavit filed with a government agency, the Court stated: "Our legal system provides methods for challenging the Government's right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969) (footnote omitted). In determining that the false "exculpatory no" answer in response to government agents conducting an investigation is not excluded from prosecution for false statements, the Court explained: "Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function." Brogan v. United States, ___ U.S. ___, ___, 118 S.Ct. 805, 809, 139 L.Ed.2d 830 (1998). The Court concluded that "neither the text nor the spirit of the Fifth Amendment confers a privilege to lie." Id. at ___, 118 S.Ct. at 810. Holding that a government agency may take adverse action against employees who make false statements to agency investigators concerning alleged misconduct, the Court determined that it was irrelevant that the statements were not made under oath for the purpose of criminal culpability. See LaChance, ___ U.S. at ___, 118 S.Ct. at 756. Thus, the Court has determined that the Fifth Amendment does not protect false statements from a later prosecution for perjury or false statements whether they occur under oath, with immunity, or during a governmental investigation.
Although the Supreme Court has not addressed the specific issue before us, where the false statements previously were suppressed in the Garrity context, other circuits have held that the Fifth Amendment and Garrity provide no insulation against a subsequent
Id. at 306 (emphasis added).
In several cases, the Seventh Circuit followed the reasoning of Annunziato and affirmed the convictions of Chicago police officers for giving false statements before a grand jury in violation of 18 U.S.C. § 1623, although the officers received Garrity protection for their testimonies. In United States v. Devitt, 499 F.2d 135 (7th Cir.1974), that court determined that
The Third Circuit addressed similar facts in Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 281 (3d Cir.1988), where a police officer union brought suit against the city and argued that a questionnaire plus a polygraph examination that had to be completed prior to an officer's admission into a special unit of the police department violated the officer's Fifth Amendment rights. The court explained:
Lodge No. 5, 859 F.2d at 281 (emphasis added). Thus, the Annunziato reasoning has influenced other circuits in addressing this issue with the conclusion that the Fifth Amendment does not protect false statements given during testimony that otherwise would be protected by Garrity from future prosecutions concerning those false statements.
Although an accused may not be forced to choose between incriminating himself and losing his job under Garrity, neither Garrity nor the Fifth Amendment prohibits prosecution and punishment for false statements or other crimes committed while making Garrity-protected statements. Giving a false statement is an independent criminal act that occurs when the individual makes the false statement; it is separate from the events to which the statement relates, the matter being investigated. See Lodge No. 5, 859 F.2d at 281 n. 7 (contrasting past criminal activity under investigation with committing a crime while testifying); see also Olmeda, 839 F.2d at 1436-37 nn. 5 & 7 (observing that a defendant may not use the Fifth Amendment, self-incrimination privilege to suppress false grand jury testimony that results in a perjury prosecution). We agree with the circuits that have addressed this issue before us and have determined that Garrity-insulated statements regarding past events under investigation must be truthful to avoid future prosecution for such crimes as perjury and obstruction of justice. Garrity protection is not a license to lie or to commit perjury.
Watson and Haynes also argue that their statements were coerced in violation of their Fifth Amendment rights under Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
The predicament in which Veal, Watson and Haynes found themselves at police headquarters in the early morning hours of December 17, 1988, was of their own making. While they feared losing their jobs if they invoked the Fifth Amendment and remained silent, Garrity did not afford them refuge to give false statements to investigators and not be prosecuted for obstruction of justice. Their deliberate, false statements resulted from their independent, voluntary choices and impeded the investigation of Mercado's death. By giving false statements, they obstructed justice relating to the investigation of Mercado's death and provided the avenue for prosecution in this case which would have been unavailable if they had told the truth.
B. Interpretation and Application of 18 U.S.C. § 1512(b)(3)
Veal, Watson, Haynes and Camacho argue that Count II, as charged in the indictment and as the jury was instructed on it, fails to state a violation of 18 U.S.C. § 1512(b)(3). They support their argument by construing the statutory language and challenging the federal nexus of their acts. We address both of these arguments.
1. Statutory Construction
Count II of the indictment, the only count on which Veal, Watson, Haynes and Camacho were convicted, states that they
R1-1-9-10. The statute at issue, 18 U.S.C. § 1512(b)(3), provides in relevant part:
18 U.S.C. § 1512(b)(3) (emphasis added).
Veal, Watson, Haynes and Camacho contend that "another person" in § 1512(b)(3) does not refer to state law enforcement agents but to persons who have relevant information regarding the possible commission of a federal crime and, thus, can be hindered, delayed or prevented from communicating this information to federal officers. In short, they argue that the statute protects the potential messenger or victim, who already possesses pertinent knowledge, rather than the recipient or investigator, who acquires information. They fortify their argument with the title of the statute, "Tampering with a witness, victim, or an informant," which they claim plainly evidences that Congress intended the statute to protect only those individuals who have information regarding the commission or possible commission of a federal crime. 18 U.S.C. § 1512. The district judge rejected this argument raised in the officers' collective motion to dismiss Count II; we agree.
Our court reviews a district court's statutory interpretation and application de novo. See United States v. Grigsby, 111 F.3d 806, 816 (11th Cir.1997). In construing a statute, we first look to the plain language of the statute. See Albernaz v. United States, 450 U.S. 333, 336, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). Words are interpreted with their ordinary and plain meaning because we assume that Congress uses words in a statute as they are commonly understood; we give each provision full effect. See United States v. McLeod, 53 F.3d 322, 324 (11th Cir.1995). Review of legislative history is unnecessary "unless a statute is inescapably ambiguous." Solis-Ramirez v. United States Dep't of Justice, 758 F.2d 1426, 1430 (11th Cir.1985) (per curiam); see United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989) (stating that, where statutory language is clear, we will not create an ambiguity with legislative history). Therefore, we deem the plain language of the statute to be conclusive as clearly expressing legislative intent, unless the resulting application would be "absurd" or "internal inconsistencies" must be resolved. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981).
The application of these principles exposes the infirmities in the arguments by Veal, Watson, Haynes and Camacho. To reach an analysis of legislative history, they first must show that "another person" is ambiguous and requires the aid of legislative history for interpretation. As the district court found, there is no ambiguity in "another person," which is easily and commonly understood to mean any person, regardless of whether he possessed knowledge of the commission or possible commission of a federal crime from being an eyewitness or investigating official. The statute broadly forbids one to "engage in misleading conduct toward another person, with the intent to ... hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense." 18 U.S.C. § 1512(b)(3). The government alleged that Veal, Watson, Haynes and Camacho misled state investigators by not telling them the true circumstances surrounding Mercado's death to prevent the investigators from learning the actual facts of his death and, thereby, precluding their communicating those facts to the Federal Bureau of Investigation, the United States Department of Justice, and judges of the United States.
Furthermore, using this common definition does not lead to an absurd result. Veal, Watson, Haynes and Camacho argue that acceptance of the plain language of the statute would federally criminalize every false statement made by anyone to any police officer. The clear language of the statute, however, negates that interpretation because of the statutorily prescribed federal nexus with federal agencies and judges. There is nothing irrational about a federal statute that seeks to prevent any person from perverting the truth-seeking function of investigative or judicial processes. See McLeod, 53 F.3d at 324 (observing that interpreting 18 U.S.C. § 1513(a)(1) to prohibit retaliation against witnesses in civil as well as criminal suits does not lead to an absurd result).
Additionally, a plain-language reading of § 1512(b)(3) does not render the statute redundant, implausible, or inconsistent with other sections. Veal, Watson, Haynes and Camacho rely on the caption or title of 18 U.S.C. § 1512 as evidence that Congress did not intend that persons with no pre-existing knowledge be included within the purview of this statute. To construe the statute, they urge the application of the doctrine of ejusdem generis, representing "that where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated." Turkette, 452 U.S. at 581, 101 S.Ct. at 2527 (determining ejusdem generis doctrine inapplicable, notwithstanding statutory title, in interpreting scope of the RICO statute). Consequently, Veal, Watson, Haynes and Camacho argue that "another person" is constricted by the statutory title to mean "witness, victim, or informant."
The rule of ejusdem generis is "no more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute." Id. at 581, 101 S.Ct. at 2528. In declining to apply the principle of ejusdem generis to determine that only false statements that pervert governmental functions are encompassed by 18 U.S.C. § 1001, the Court stated that "it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy — even assuming that it is possible to identify that evil from something other than the text of the statute itself." Brogan, ___ U.S. at ___, 118 S.Ct. at 809. By insisting that the statute be read in the most restrictive way, Veal, Watson, Haynes and Camacho have attempted to create an uncertainty in the statute where none exists.
Nothing in the statutory language or the caption contains this artificial definition that they advance. The title states "witness"; it does not state or require that the witness have prior knowledge. Significantly, police officers, as a consequence of their occupation, become witnesses as a matter of course in each investigation in which they are involved. Thus, the terms used in the statutory title do not exempt police officers. The fact that Congress did not use restrictive language in drafting § 1512(b)(3) confirms our logical conclusion that "witness," as used in the caption, can be interpreted to encompass state investigators. See United States v. Castro, 89 F.3d 1443, 1456 (11th Cir.1996) (rejecting appellants' interpretation that "another" in 18 U.S.C. § 1346 is limited to nongovernmental victims and determining that the plain language of the statute and its legislative history support a nonrestrictive reading of "another" to include the state as well as all governmental entities), cert. denied, ___ U.S. ___, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997); United States v. Yeatts, 639 F.2d 1186, 1189 (5th Cir. Unit B Mar.1981) (interpreting "coin" in 18 U.S.C. § 485 in a nonrestrictive
Even if review of the legislative history were appropriate, it rejects the rule of ejusdem generis and discredits the restrictive view of the statute presented by Veal, Watson, Haynes and Camacho. See Victim & Witness Protection Act of 1982, S.Rep. No. 97-532, at 18 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2524. The Senate Report evinces legislative intent to expand the existing "obstruction of justice" statutory scheme by enacting § 1512.
Id. (emphasis added). To reach such cases, the Senate Report states that the Committee
Id. (emphasis added).
Thus, the Senate Report on subsection (b)(3) reveals that it is to be read to include a wide range of conduct that thwarts justice. The actions of Veal, Watson, Haynes and Camacho fit within the Committee's discussion of proscribed conduct, which expressly includes activities designed to create witnesses as part of a cover-up and to use unwitting third parties or entities to deflect the efforts of law enforcement agents in discovering the truth. Veal, Watson, Haynes and Camacho used deception to thwart the investigation into Mercado's death by creating false and misleading information, which they related to state investigators with the knowledge that this information would be relayed to and relied upon by other investigators. To ensure that they would be exonerated of any wrongdoing in Mercado's death, they further used police officers and personnel, such as the technician photographer of Camacho's shirt, who they either knew would be or likely would be witnesses in the Mercado investigation, as conduits to create false and misleading evidence about the events resulting in Mercado's death. Cf. United States v. King, 762 F.2d 232 (2d Cir.1985) (observing that § 1512(b)(3) should not have been charged because the alleged misleading conduct, outright subornation of perjury, did not involve any deceptive or misleading conduct). FBI agents who were investigating the possible commission of a civil rights crime were among the investigators who learned of and relied upon this contrived information and evidence provided by Veal, Watson, Haynes and Camacho. It is clear that Congress intended § 1512(b)(3) to be used to punish deceptive methods of impeding justice and that it covers the conduct of these police officers.
2. Federal Nexus
Veal, Watson, Haynes and Camacho also argue that their conviction for violating § 1512(b)(3) was improper because all that
This federal nexus argument implicates the specific intent or mens rea requirements for violating § 1512(b)(3), which we must analyze in the proper statutory context. The district judge gave the following jury instruction, explaining the specific intent and conduct necessary to find a violation of § 1512(b)(3):
R43-26, 28 (emphasis added). At the outset, we recognize that the actions of Veal, Watson, Haynes and Camacho on December 16 and 17, 1988, constituted intentional "misleading conduct" under § 1512(b)(3).
Congress has enacted numerous obstruction of justice statutes designed to criminalize a variety of conduct. See generally 18 U.S.C. §§ 1501-1517. These statutes contain distinct jurisdictional prerequisites necessary for invoking federal authority to prosecute specific conduct. Different clauses in § 1512 prescribe different bases upon which federal jurisdiction is predicated.
Sections 1512(a)(1)(A), (a)(1)(B), and (b)(2)(A)-(D) all require that the proscribed conduct occur in the context of an "official proceeding." Section 1515 defines "official proceeding" as a proceeding in any federal court, federal grand juries, congressional hearings, federal agencies, and interstate insurance. See 18 U.S.C. § 1515(a). In contrast, §§ 1512(a)(1)(C) and (b)(3), the subsection under which this case arises,
The reliance of Veal, Watson, Haynes and Camacho on United States v. Shively, 927 F.2d 804 (5th Cir.1991), therefore, is misplaced. In Shively, defendants-appellants intimidated a witness by insinuating harm to his family and, consequently, caused him to testify falsely at a deposition for a case pending in state court two and a half years before a federal grand jury indictment. See id. at 810-11. Because the criminal conduct in that case did not concern a federal "official proceeding" as required under § 1512(b)(1), the Fifth Circuit reversed the convictions. Thus, the jury charge in that case is inapplicable to this case involving § 1512(b)(3). The Fifth Circuit did note that the intimidation at issue in Shively well might have been within the ambit of § 1512(b)(3), which "speaks more broadly" because the limitation of "official proceeding" is absent. Id. at 812.
Similarly, the Supreme Court's decision in United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), concerning a federal judge who gave false and misleading information to FBI agents during a grand jury investigation, does not assist Veal, Watson, Haynes and Camacho. That case involved the Court's consideration of the catchall provision of § 1503, which prohibits anyone from corruptly endeavoring to influence or obstruct "the due administration of justice." 18 U.S.C. § 1503(a). The Court recognized that the federal nexus meant by "due administration of justice" is that the obstructive act "have a relationship in time, causation or logic with the judicial proceedings." Aguilar, 515 U.S. at 599-600, 115 S.Ct. at 2362. With respect to specific intent, the Court explained that "if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." Id. at 599, 115 S.Ct. at 2362.
In terms of sufficiency of evidence to support Aguilar's conviction, the Court held that his false statements to an FBI agent were insufficient to meet that nexus in the absence of proof that he knew that such statements would be provided to a grand jury. The request by Veal, Watson, Haynes and Camacho that we superimpose the nexus requirement of "due administration of justice" in § 1503 onto the different federal nexus requirement of § 1512(b)(3) is misguided. In Aguilar, the Court sought to place the phrase "due administration of justice" in the context of a legitimate federal interest that was consistent with the amorphous language used by Congress. The Court determined that the phrase "due administration of justice" connotes the federal government's interest in preserving the integrity of a judicial proceeding. Other obstruction statutes, such as § 1512(b)(3) at issue in this case, implicate different federal interests, which specifically do not identify as the federal interest a federal judicial proceeding, pending or contemplated.
Significantly, § 1512(f)(2) expressly states that, for purposes of § 1512 prosecutions, "no state of mind need be proved with respect to the circumstance" that the law enforcement officer
Likewise, § 1512(b)(3) does not require that a defendant know the federal nature of the crime about which he provides information because the statute criminalizes the transfer of misleading information which actually relates to a potential federal offense, regardless of whether the communicator of such information knows or believes that the crime about which he knowingly provides false or misleading information is federal.
By its plain wording, § 1512(b)(3) is designed to ensure that information received by federal investigators or judges regarding a potential federal crime be correct, truthful, and complete to facilitate a full and fair investigation and adjudication. It is irrelevant to that inquiry whether the person who provides false or misleading information that ultimately becomes relevant to a federal investigation intended that a federal investigator or judge receive that information; it is relevant only that a federal investigator or judge received it. See Fortenberry, 971 F.2d at 720 n. 9. In this case, the evidence established that a federal agency, the FBI, received the misleading information in the course of its investigation of a possible civil rights violation that resulted in Mercado's death. The exclusion of any requirement that the defendant know that the misleading information that he provides will be communicated to an official with federal authority negates the specific intent mens rea urged by Veal, Watson, Haynes and Camacho. Because the district judge correctly interpreted § 1512(b)(3) as it was charged relative to the facts in this case, his denials of Veal, Watson, Haynes and Camacho's pretrial motions to dismiss Count II as well as their post-trial motions challenging the jury instructions were proper.
C. Sufficiency of the Evidence
Veal, Watson, Haynes and Camacho argue that the evidence was insufficient to support their convictions for violating § 1512(b)(3), both as to their conduct, or actus reus, and specific intent, or mens rea. The district judge denied their post-trial motions requesting acquittal notwithstanding the verdict or, alternatively, for a new trial, wherein they raised the same arguments. To the extent that they argue that their acquittal on Count I, alleging conspiracy to violate 18 U.S.C. §§ 1503 and 1512, establishes insufficiency of the evidence to support their convictions on Count II, their argument improperly conflates the distinction between insufficiency of the evidence and inconsistent verdicts. The Supreme Court has explained that "[s]ufficiency-of-the evidence review involves assessment by the courts of whether
We review challenges to sufficiency of the evidence de novo and assess the evidence in the light most favorable to the prosecution. See United States v. Suba, 132 F.3d 662, 671 (11th Cir.1998). We make all reasonable inferences and credibility choices in favor of the jury's verdict as we evaluate the evidence to determine whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). To prove a violation of § 1512(b)(3), the government must establish beyond a reasonable doubt that the defendant knowingly and willfully (1) engaged in misleading conduct toward another person, (2) with the intent to hinder, delay or prevent the communication of information to a federal law enforcement officer or federal judge, (3) about the commission or the possible commission of a federal crime. See 18 U.S.C. § 1512(b)(3).
We have explained that "another person" is unrestricted and includes the state investigators, who were the conduit for relaying false and misleading information imparted to them by Veal, Watson and Haynes to federal authorities. Furthermore, because § 1512(f) provides that no state of mind is needed for violation of § 1512(b)(3), we have explained that the officers did not need to know that their false and misleading statements would be relayed to the FBI or that their actions constituted a federal crime at the time of their conduct. Pursuant to the district judge's accurate instructions on these elements of violating § 1512(b)(3), our focus in analyzing the sufficiency-of-the-evidence arguments will be on the actus rea, or Veal, Watson, Haynes and Camacho's intentional actions.
1. Veal, Watson and Haynes
The culpability of Veal, Watson and Haynes is based on their December 17, 1988, statements wherein they disavowed touching Mercado, observing any contact with him, or having any knowledge of the cause of his injuries
Nevertheless, reasonable jurors could disbelieve those statements based upon the blood-spatter evidence, which conclusively placed Veal, Watson, Haynes and Camacho at the scene at the time of Mercado's fatal injuries. Although Veal professed noninvolvement, the blood-spatter evidence showed that he had struck Mercado multiple times using medium to medium-high force and that he was present when others struck Mercado. Similarly, that evidence showed that Watson had kicked Mercado in the head with his shoe as many as four times and that he knew that officers other than Camacho also had kicked Mercado. The blood-spatter evidence additionally revealed that Haynes kicked Mercado in the face at least once and that he was present when others struck Mercado.
Although Veal, Watson and Haynes portrayed themselves as being ignorant of any attempt to discuss collectively the Mercado
Camacho argues that evidence regarding his ripped shirt and his presentation of it to police technician Romans for photographing is insufficient to constitute misleading conduct with intent to hinder or prevent the communication of information to law enforcement personnel.
Camacho asked Romans to photograph his shirt under circumstances that logically would lead any investigator who received the photographs to believe that the condition of the shirt was a direct result of the altercation with Mercado and, thus, to arrive at erroneous conclusions about the nature of the incident.
D. Jury Instructions Regarding Materiality
Veal argues that the district judge improperly instructed the jury regarding materiality because he informed the jurors that materiality was a legal question for the court to decide in contradiction of United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which reallocated the determination of the materiality of a false statement under 18 U.S.C. § 1001
For cases on direct appeal at the time that it was decided, such as this case, Gaudin applies retroactively. See United States v. Fern, 117 F.3d 1298, 1307 (11th Cir.1997) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 715, 93 L.Ed.2d 649 (1987)). We review for plain error when the purported error on appeal is the result of a subsequent Supreme Court decision and no error was asserted at trial.
The only reference to "material" in the district judge's instructions concerning § 1512(b)(3) occurred in the definition of "misleading conduct" from § 1515(a)(3)(B), where the adjective "material" modifies "fact" and "respect."
Veal, Watson, Haynes and Camacho, experienced narcotics police officers, have presented various issues in an effort to overturn their convictions under § 1512(b)(3) for engaging in misleading or obstructive conduct relating to the federal investigation of the death of Mercado, a drug dealer. Veal, Watson and Haynes contest the admission in the obstruction case of their statements suppressed by the same district judge in their previous trial for violating Mercado's civil rights. All challenge the district judge's interpretation and application of § 1512(b)(3) as well as the sufficiency of the evidence to support their convictions. Veal argues that Gaudin precludes the district judge's jury instructions on materiality. For the reasons explained herein, we AFFIRM their convictions.
Defendants Haynes, Sinclair, Veal and Watson also persuasively argue that they felt they were required to give a statement based upon the advice of counsel. Attorney Klausner testified that his advice to the officers was to answer truthfully every question put by the investigating officers, under penalty of job loss.
Camacho, 739 F.Supp. at 1516, 1517 (emphasis added).
White, 589 F.2d at 1287 (emphasis added).
18 U.S.C. § 1515(a)(3).
18 U.S.C. § 1503.
18 U.S.C. § 1512(a).
18 U.S.C. §§ 1512(b)(1) & (2).
18 U.S.C. § 1515(a)(4). Because of the concurrent jurisdiction of state and federal authorities in such areas as drug interdiction and homicides as well as their common goal of law enforcement, we recognize that state police officers can serve as advisors or consultants to federal agents in the "prevention, detection, investigation, or prosecution" of various federal crimes. Id. at § 1515(a)(4)(A).
18 U.S.C. § 1001(a).
R43-27 (emphasis added); see 18 U.S.C. § 1515(a)(3)(B) & (D) (defining "misleading conduct" for purposes of § 1512 inter alia as "intentionally concealing a material fact" and "with intent to mislead, knowingly submitting or inviting reliance on ... [an] object that is misleading in a material respect" (emphasis added)).