Federal Courts of Appeal Uphold Obstruction Charges for False Documents
Created Pre-Investigation and Those That Are “Irrelevant”
The potential for federal obstruction of justice charges levied against companies has increased
substantially with two recent decisions by federal Courts of Appeal.
The Sixth Circuit held in
United States v. Carson
that creating a document containing false information
even long before a federal investigation is initiated (i.e., as much as six months prior to the investigation)
may trigger obstruction of justice liability if the company reasonably knew or should have known that a
federal investigation was possible or likely. The practical implications of this ruling require a company to
enhance its internal controls and vigilantly monitor the management of corporate documents, regardless
of whether the company believes or knows that a federal investigation may arise, in order to adequately
protect against later facing charges that it should have known that an investigation into the underlying
subject matter would be initiated.
In
United States v. Erickson
, the Tenth Circuit held that a company may be charged with obstruction
of justice for producing a false document in response to a federal grand jury subpoena even where the
document at issue was later shown to be irrelevant to the grand jury’s investigation. The ramifications
of this decision are significant for businesses—many of which are regularly required to respond to
federal grand jury subpoenas due to the regulated nature of their industries—and suggest that companies
should carefully examine every document produced to federal authorities to avoid production of false
information, even if the document being produced appears to have little or no relevance to the matters
under investigation.
Sixth Circuit Affirms Obstruction Charges for False Statements Made Six Months
Prior to Federal Investigation
The US Court of Appeals for the Sixth Circuit ruled in
United States v. Carson
that a defendant had violated
the federal obstruction of justice statute, 18 USC § 1512(b)(3), by creating a false report six months prior to
the start of a federal investigation. The defendant, a police officer, had colluded with several other officers
to falsely state in their police reports that an arrestee had been the aggressor, thus triggering
the officers’ use of force.
At trial, the prosecution established that the officers’ training had included instruction that the use of
excessive force could lead to criminal charges against them under federal or state law. The Sixth Circuit
found that this satisfied the knowledge element of the federal obstruction of justice statute with which
the defendant was charged, because “a reasonable jury could conclude that [the officer] knew that
writing a misleading report to cover up the use of excessive force might result in a federal investigation.”
Following decisions from the First and Eleventh Circuits, the Sixth Circuit further found that a federal
nexus existed even though the false reports were initially submitted to state authorities based on “the
possibility
or likelihood
that [the defendant’s] false and misleading information would be transferred to
federal authorities irrespective of the governmental authority represented by the initial investigators.”
