U.S. Department of Justice
Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e)
differently; 2. Under other circumstances"); see also Gooch v. United States, 297 U.S. 124, 128 (1936) (characterizing "otherwise" as a "broad term" and holding that a statutory prohibition on kidnapping "for ransom or reward or otherwise" is not limited by the words "ransom" and "reward" to kidnappings for pecuniary benefits); Collazos v. United States, 368 F.3d 190, 200 (2d Cir. 2004) (construing "otherwise" in to reach beyond the "specific examples" listed in prior subsections, thereby covering the "myriad means that human ingenuity might devise to permit a person to avoid the jurisdiction of a court"); cf. Begay v. United States, 553 U.S. 137, 144 (2006) (recognizing that "otherwise" is defined to mean "in a different way or manner," and holding that the word "otherwise" introducing the residual clause in the Armed Career Criminal Act, , can, but need not necessarily, "refer to a crime that is similar to the listed examples in some respects but different in others").[1] The purpose of the word "otherwise" in Section is therefore to clarify that the provision covers obstructive acts other than the destruction of physical evidence with the intent to impair its integrity or availability, which is the conduct addressed in Section . The word "otherwise" does not signal that Section has less breadth in covering obstructive conduct than the language of the provision implies.
- 2. Judicial Decisions Support a Broad Reading of Section
Courts have not limited Section to conduct that impairs evidence, but instead have read it to cover obstructive acts in any form.
As one court explained, "[t]his expansive subsection operates as a catch-all to cover 'otherwise' obstructive behavior that might not constitute a more specific offense like document destruction, which is listed in (c)(1)." United States v. Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014) (some quotation marks omitted). For example, in United States v. Ring, 628 F. Supp. 2d 195 (D.D.C. 2009), the court rejected the argument that "§ 's reference to conduct that 'otherwise obstructs, influences, or impedes any official proceeding' is limited to conduct that is similar to the type of conduct proscribed by subsection (c)(1)—namely, conduct that impairs the integrity or availability of 'record[s], documents[s], or other object[s] for use in an official proceeding." Id. at 224. The court explained that "the meaning of § is plain on its face." Id. (alternations in original). And courts have upheld convictions under Section that did not involve evidence impairment, but instead resulted from conduct that more broadly thwarted arrests or investigations. See, e.g., United States v. Martinez, 862 F.3d 223, 238 (2d Cir. 2017) (police officer tipped off suspects about issuance of arrest warrants before "outstanding warrants could be executed, thereby potentially interfering with an ongoing grand jury proceeding"); United States v. Ahrensfield, 698 F.3d 1310, 1324–1326 (10th Cir. 2012) (officer disclosed existence of an undercover investigation to its target): United States v. Phillips, 583 F.3d 1261, 1265 (10th Cir. 2009) (defendant disclosed identity of an undercover officer thus preventing him from making controlled purchases from methamphetamine dealers). Those cases illustrate that Section applies to corrupt acts—including by public officials—that frustrate the
- ↑ In Sykes v. United States, 564 U.S. 1, 15 (2011), the Supreme Court substantially abandoned Begay's reading of the residual clause, and in Johnson v. United States, 135 S. Ct. 2551 (2015), the Court invalidated the residual clause as unconstitutionally vague. Begay's analysis of the word "otherwise" is thus of limited value.
162
