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United States of America v. Gary L. Ermoian

March 30, 2011


The opinion of the court was delivered by: Oliver W. Wanger U.S. District Judge


This matter came on for hearing on February 28, 2011. Defendant Gary L. Ermoian moved the court for a Judgment for Acquittal or, in the alternative, for a New Trial. For the following reasons, defendant's motions are hereby DENIED.

The defendant was convicted at trial by jury on August 13, 2010 of one count of Conspiracy to Obstruct Justice, in violation of Title 18, United States Code, sections 1512(c)(2) and (k).


The standard to be applied in reviewing the sufficiency of evidence in a Motion for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure Rule 29 is whether "after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)(emphasis in original); United States v. Castaneda, 16 F.3d 1504, 1510-11 (9th Cir. 1994). In conducting this review, the Court is powerless to question the witnesses' credibility, and must presume that the trier of fact will resolve any conflicting inferences in favor of the prosecution. United States v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000) (citing United States v. Croft, 124 F.3d 1109, 1125 (9th Cir. 1997) and Wright v. West, 505 U.S. 277, 296-97, 112 S. Ct. 2482 (1992) (plurality opinion)). The reviewing court must permit a jury to "draw reasonable inferences from proven facts" and must assume that the jury would make all inferences which support a guilty verdict. United States v. Garza, 980 F.2d 546, 552 (9th Cir. 1992).

The defendant moves for Judgment of Acquittal on three grounds. The court will address each of these grounds in the order presented.

A. FBI Investigation is not an "Official Proceeding"

Defendant's first argument is that an FBI investigation is not an "official proceeding" within the meaning of 18 U.S.C. § 1515(a).

Title 18, United States Code, section 1512(c)(2) states:

(c) Whoever corruptly -(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, [is guilty of a felony].

Defendant's argument is that, under 18 U.S.C. § 1512(c)(2), as defined in 18 U.S.C. § 1515(a)(1)(C), an FBI investigation is not an "official proceeding". Section 1515(a)(1)(C) states:

(a) As used in sections 1512 and 1513 of this title and in this section -

(1) the term "official proceeding" means -

(C) a proceeding before a Federal Government agency which is authorized by law.

The defendant cites several cases that support his view, however, these cases can be distinguished and the court concludes that an FBI investigation is an "official proceeding" within the meaning of the statute.

1. Legislative History

A review of the legislative history of 18 U.S.C. § 1512 reveals that the term "official proceeding" is to be interpreted broadly, to encompass both criminal investigations and court proceedings.

Current section 1512,and the use of the term "official proceeding", has its genesis in the Victim and Witness Protection Act of 1982 (VWPA). The 1982 VWPA had as its purpose the strengthening of existing legal protections for victims and witnesses of federal crimes. S.Rep. 97-532; 1982 U.S.C.C.A.N. 2512, 2515.

As noted by the Senate Judiciary Committee:

The problem of victim and witness intimidation which this Title addresses was brought out clearly in two days of public hearings held in 1979 by the American Bar Association Criminal Justice Section's Victims Committee. Under current law there is ambiguity about who would constitute a "witness". Generally, court decisions define "witness" to mean a person "expected" to testify in a court proceeding. Therefore, it is questionable whether Title 18 as presently written would protect a witness who is able to provide information about a crime but who is not necessarily expected to testify because the testimony would either constitute hearsay (often the case with informants), would be privileged, or would otherwise be inadmissible The scope of the offense should not be limited by concerns . about the status of the victim as a person who has testified or will be able to testify in court. Rather, the offense should be addressed to punishing the acts of intimidating or injuring a person because of his knowledge about the commission of a crime. Id., at 2521 (emphasis added).

The Judiciary Committee went on to explain the expansive interpretation that was to be given to the term "official proceeding" under the statute:

The term "official proceeding" is defined broadly in section 1514 [now current section 1515] where definition is also given to the term "law enforcement officer". Id., at 2523.

The obstruction of justice statute is an outgrowth of Congressional recognition of the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined. In the Committee's view, this observation leads to the conclusion that the purpose of preventing an obstruction or miscarriage of justice cannot be fully carried out by simple enumeration of commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice. Some examples of such conduct, actually prosecuted under current residual clauses, which would probably not be covered in this series without a residual offense clause, are as follows:

(IV) A conspiracy to cover up the Watergate burglary and its aftermath by having the Central Intelligence Agency seek to interfere with an ongoing FBI investigation of the burglary.

In order to reach such cases . . . the Committee determined to include subsection (a)(3)[now section (a)(2)]. [T]he analysis should be functional in nature to cover conduct the function of which is to tamper with a witness, victim, or informant in order to frustrate the ends of justice.

Id., at 2524 (emphasis added).

The Judiciary Committee further commented on the expansive interpretation to be given to "official proceeding" in addressing that the official proceeding need not be in progress or pending at the time:

The Committee felt that this increases the scope of the section by expanding the galaxy of witnesses and victims the protections of its language is meant to embrace. Intimidation offenses are particularly insidious and do violence to traditional notions of justice because no one can be convicted of a crime which is not reported. Subsection (d)(1), among other things, specifically reaches intimidation offenses committed before a crime is reported to the appropriate authorities. Id., at 2525 (emphasis added).

Title 18, United States Code, section 1513 is entitled "Retaliating Against a Witness, Victim or Informant". It utilizes the same definition of "official proceeding" used under section 1512. In addressing amendments to section 1513 that would broaden protections of victims and witnesses of crimes, the Senate Judiciary Committee considering the 1982 VWPA noted that "current law does not clearly proscribe retaliation against friends, relatives, or associates of an individual who has provided information concerning criminal investigations. Id., at 2526.

In further addressing the definition of "official proceeding" contained in sections 1512 and 1513, the Committee stated as follows:

The Committee has also substituted the term "official proceeding", which is defined in section 1514 [now 1515] for the current law term "legal proceedings". This change is in no way intended to limit the reach of the current language. In particular, the Committee intends that the statute remain applicable in civil and administrative proceedings, where warranted, as well as criminal proceedings. The term "official proceeding" is intended to achieve this result. In addition the word "involved" is used instead of the more limited word "instituted" to make prior to formal charges being brought it clear that relocation is possible against a specific defendant. The definition of "official proceeding" would indicate the same result. Id., at 2530 (emphasis added).

In 1997, the House Judiciary Committee considered H.R. 2181 -The Witness Protection and Interstate Relocation Act of 1997. In addressing the background and the need for the legislation, the Committee noted that prosecutors and police confront two principal types of witness intimidation - overt and implicit. 1997 WL 583228, *2. The Committee sought to strengthen protections for victims and witnesses of crimes so as to increase cooperation during criminal investigations. Id. Toward that end, the Committee added subsection

(j) to section 1512, which established enhanced penalties for obstruction of justice offenses involving victims, witnesses, and informants by adding a conspiracy component to obstruction of justice under section 1512. Insofar that "official proceeding" was the definition applicable to section 1512, this is a further indication of legislative intent that an "official proceeding" encompass a criminal investigation.

Therefore, the legislative history behind section 1512 and the definition of "official proceeding" reveals that it was to be given an expansive reading in order to effectuate the intent behind the statute - to protect victims, witnesses and others from threats and intimidation during criminal investigations and prosecutions.

2. An FBI Investigation is an "Official Proceeding" The current version of Section 1512(c)(2) became effective July 30, 2002, as part of the Sarbanes-Oxley Act of 2002. See, Pub.L.No. 107-204, 116 Stat. 745 (2002). Section 1512(c) was one of the measured responses by Congress to improve the accuracy and reliability of corporate disclosures by penalizing those who obstruct justice by somehow impairing the integrity or availability of records, documents, and other tangible objects. Id. Section 1512(c)(1) lists specific conduct that is prohibited under this subsection, while 1512(c)(2) is intended to account for unenumerated conduct that violates the subsection. Evidence of the expansive nature of the term is the precedential authority that defined "official proceeding" in section 1512 prior to the 2002 amendments. See, S.Rep. 97-532; 1982 U.S.C.C.A.N. 2512; United States v. Gonzalez, 922 F.2d 1044, 1055-56 (2d Cir. 1991); United States v. Kelley, 36 F.3d 1118, 1128 (D.C. Cir. 1994). Although the text of section 1512 changed due to the 2002 amendments, there is no indication that Congress intended to alter or change the judicial or past legislative interpretation of "official proceeding". Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185 (1994)("When Congress reenacts statutory language that has been given a consistent judicial construction, we often adhere to that construction in interpreting the reenacted statutory language.").

Section 1512(g)(1) states that "no state of mind need be proved with respect to the circumstance that the official proceeding . . . before a government agency is before . . . a Federal government agency, and section 1512(g)(2) states that "no state of mind need be proved that the . . . law enforcement officer is an officer or employee of the Federal government." Thus, section 1512 specifically contemplates criminal law enforcement investigations, utilizing law enforcement officers, in addition to more formal court and grand jury proceedings.

"Official proceeding" is broadly defined as including investigatory proceedings by government agencies to effectuate Congress' purpose in passing it. United States v. Gonzalez, 922 F.2d at 1055 (2d Cir. 1991), cert. denied, 502 U.S. 1014 (1991). Contrary to defendant's argument, the Second Circuit in Gonzalez addressed the definition of "official proceeding" as referred to in section 1512(a)(1)(A)(whose definition is contained in the same section at issue in this case - section 1515(a)), and held that the term "official proceeding" applies to those acts which occur during the investigatory stage. Id., at 1055-56. In so doing, the Second Circuit stated that it read the term "official proceeding" broadly in order to effect Congress' intent on passing it, and thus applied the term to an agency criminal investigation. Id.

The defendant cites United States v. Dunn, 434 F.Supp.2d 1203 (M.D. Ga. 2006), a district court case which held that an ATF investigation, standing alone, is not an "official proceeding" under the obstruction of justice statute. Id., at 1209. However, the court did note that Dunn would be guilty of obstructing justice if a prosecution in federal court was foreseeable.

For a prosecution to be foreseeable, the person must have an inkling that he is the target of an investigation. Id., at 1210. In this case, the record is clear that Bob Holloway and defendant Ermoian both knew that he was under federal investigation. The phone calls themselves reveal Bob Holloway and the defendant lamenting the length of the investigation and the identity of the federal agents.

The defendant also cites United States v. Gabriel, 125 F.3d 89, 105 fn.13 (2d Cir. 1997)("the jury also reasonably could have concluded that Gabriel's sole intent was to interfere with the FBI investigation, and if the jury had so concluded, it would have been compelled to find Gabriel innocent."). This language was dicta contained in a footnote, and the issue was not specifically addressed by the court. Indeed, the court did not even cite to its earlier opinion in Gonzalez, discussed above, which held that "official proceeding" applies to acts committed during the investigation phase.

The defendant states that United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994), cited by the government in an earlier brief, is actually helpful to him because its finding that the U.S. Agency for International Development (AID) had subpoena powers and the power to administer oaths, thus lending an air of formality that supported a finding that processes before it were "proceedings" under section 1505. However, that determination was made by the court in light of its finding that there was a "proceeding" under section 1505.

When specifically addressing the issue of whether the investigation by AID was an "official proceeding" under section 1512, the District of Columbia circuit held that it was, without qualifying that it reached its conclusion because of AID's subpoena powers and its powers to administer oaths. Id., at 1128.*fn1

Under defendant's interpretation of Kelley, the coverage of section 1512 would turn on an inquiry into an agency's own regulations concerning the use of its subpoena powers. There is no reason to believe that Congress intended to require such an agency-by-agency inquiry, particularly in light of the legislative history of the statute.

Nonetheless, even within the restrictive definition of Kelley, as an arm of the DOJ, an FBI criminal investigation is an "official proceeding" under section 1512.

The defendant also cites United States v. Ramos, 537 F.3d 439 (5th Cir. 2008), in support of his position that an FBI investigation is not an "official proceeding" under section 1512. Ramos involved an internal Border Patrol investigation, and the court held that Congress did not intend to "criminalize an omission that interferes with a preliminary, routine, intra-departmental inquiry of the type here." Id., at 464. The investigation at issue in this case was not a "preliminary, routine, intra-departmental inquiry", but a full criminal investigation. Furthermore, the court noted that it specifically did not address whether an agency investigation could ever constitute an "official proceeding" under section 1512, and limited its holding to the specific facts before it. Id., at fn. 18.

The defendant distinguishes United States v. Cross, 258 F.Supp.2d 432 (E.D.Va. 2003), claiming that the "official proceeding" at issue was the federal grand jury or criminal case proceedings, not the preceding DEA investigation. However, this interpretation is in direct conflict with the language of the case.

As stated in Cross, the government argued that it was the federal investigation of a co-defendant, which was underway prior to the assault on the victim, which satisfied the criteria for federal jurisdiction under section 1512. Id., at 433. The court agreed, concluding "that Agent Parker interviewed Lewis on July 12, 2002, prior to the alleged assault of Lewis by Cross on August 10, 2002, and that a DEA investigation against Goodman was underway at the time of the assault." Id., at 435 (emphasis added). "Therefore, as Lewis was a witness in a federal investigation, which led to federal charges, the criteria are met for the charge of witness tampering under 18 U.S.C. § 1512(b)(1)." Id. (emphasis added).

The defendant also distinguishes United States v. Plaskett, 2008 WL 3833838 (D. Virgin Islands)(unpublished), aff'd on other grounds, 355 Fed.Appx. 639 (3rd Cir. Virgin Islands). In Plaskett, the district court directly addressed the issue of "official proceeding" in the body of its opinion:

Viewed in the light most favorable to the government, the evidence also shows that Plaskett knew at the time of those meetings that a federal investigation and grand jury proceeding were likely forthcoming. A rational jury could find beyond a reasonable doubt that Plaskett knowingly attempted to corruptly impede or obstruct an official proceeding in December, 2004, and in January, 2005.

Id., at *5. Footnote 2 to the Plaskett decision further illuminates the issue, i.e., "[T]o the extent Plaskett argues that the federal agency investigation does not constitute an official proceeding under Section 1512(c)(2), the Court is unpersuaded. Indeed, the plain language of the statute forecloses Plaskett's interpretation."

A case with facts similar to those in the instant case is United States v. Townsend, __F.3d ___, 2011 WL 102765 (11th Cir. 2011). In Townsend, the defendant, a corrections officer, was aware of a joint Miami-Dade Police Department/DEA investigation into a coconspirator's marijuana enterprise, and she spoke to her co-conspirator on the phone just before search warrants were executed to warn him that search warrants were about to be executed on his home and grow-houses. In ...

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