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UNITED STATES v. ALLEN

December 11, 1989

UNITED STATES OF AMERICA
v.
CURTIS LEE ALLEN, JR.


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 On the day of trial, December 6, 1989, defendant moved to dismiss count two of the two-count indictment. The Court denied the motion for the reasons stated in open court and below.

 Count two charges defendant with violating 18 U.S.C. § 1512(b) by knowingly using intimidation and threatening a person with the intent to influence, delay or prevent her testimony in an official proceeding. Defendant argues that the only proceeding relevant to the alleged threat was a D.C. Superior Court grand jury proceeding, which, defendant asserts, is not an official proceeding within the meaning of the statute.

 The alleged threat apparently occurred following a finding by the Superior Court that probable cause existed with respect to an assault with a deadly weapon charge against the defendant. The recipient of the alleged threat had been subpoenaed to testify before a Superior Court grand jury at the time the defendant allegedly threatened her. She never testified, *fn1" and no indictment was returned by the Superior Court grand jury.

 Subsequently, defendant was indicted by a grand jury of this court for possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). After an attempted guilty plea to this offense failed in open court, the United States, consistent with prior notice to defendant, filed a superceding indictment with a count of witness tampering under 18 U.S.C. § 1512(b).

 Defendant urges that since at the time of the threat a Superior Court grand jury was involved, this Court has no jurisdiction because there was no "official proceeding" within the meaning of 18 U.S.C. § 1512(b) pending at the time of the alleged threat.

 "Official proceeding" is defined for purposes of 18 U.S.C. § 1512(b) at 18 U.S.C. § 1515(a)(1):

 
(A) a proceeding before a judge or court of the United States, a United States magistrate, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Claims Court, or a federal grand jury;
 
(B) a proceeding before Congress; or
 
(C) a proceeding before a Federal Government agency which is authorized by law;

 As defendant asserts, the D.C. Superior Court is clearly not within this definition. Cf. United States v. Ford, 641 F. Supp. 704 (D.S.C. 1986) (military court martial is not an official proceeding for purposes of 18 U.S.C. § 1512); Park South Associates v. Fischbein, 626 F. Supp. 1108 (S.D.N.Y), aff'd, 800 F.2d 1128 (2d Cir. 1986) (holding in a civil RICO suit that state court proceedings were not official proceedings for purposes of 18 U.S.C. § 1512). The Court need not reach the somewhat more difficult question of whether a D.C. Superior Court grand jury is a "federal grand jury" within the meaning of § 1515(a)(1), cf. Hackney v. United States, 389 A.2d 1336 (D.C. 1977), because other arguments support this Court's position. However, a Superior Court grand jury is authorized by Congress to return a federal indictment. Id.

 Section 1512(e)(1) of 18 United States Code provides that "an official proceeding need not be pending or about to be instituted at the time of the offense." Congress amended this statute with the explicit purpose of providing greater protection for potential witnesses. See United States v. DiSalvo, 631 F. Supp. 1398, 1402 (E.D.Pa. 1986), aff'd, 826 F.2d 1057 (3rd Cir. 1987).

 The fact that a Superior Court grand jury proceeding was scheduled at the time of the alleged threat does not undercut the applicability of section 1512(e)(1). The testimony that defendant was allegedly trying to prevent or influence relates to a federal charge, possession of an unregistered firearm, 26 U.S.C. § 5861(d), for which he is now being charged in this ...


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