The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
Presently before the Court is defendant's motion to dismiss the indictment.
The issues have been fully briefed and were argued before the Court on January 22, 1990. In accordance with the Court's oral ruling from the bench, and for the reasons set forth below, the Court shall grant the motion.
Defendant Michael K. Smith (a/k/a "Smitty") was an officer of the Metropolitan Police Department ("MPD") assigned to the Sixth District at the time of his arrest. He is 42 years old and had been with the Department for 20 years at the time he retired in August 1989. His arrest was the culmination of an investigation by the Internal Affairs Division of the MPD, commenced sometime in 1988. The government represents that the investigation was prompted by numerous complaints, mostly from accused drug dealers, who claimed he had "shaken them down" and "skimmed" from seized drugs and money.
After investigating the complaints, Internal Affairs set up a series of "sting" operations. The first one failed when defendant did not take the "bait," declining to carry out the staged assignment. The third and last one also failed because defendant and his partner detected the Internal Affairs' presence and shouted "set up!". The second attempt, however, led to the present charges.
On August 25, 1988, an undercover officer assumed the identity of a fictitious drug dealer, "Anthony Holly." He was given $ 386 dollars of government money. In addition, 18 packets of government-manufactured counterfeit cocaine
were placed in a trash can near the "dealer" on a corner in Southeast, D.C. An "anonymous tip" was created with the necessary details, and defendant and his partners, Officers Harvey Barber and Edwina Williams, were dispatched to investigate and make the arrest. Defendant seized the cocaine and Officer Williams seized the money. Internal Affairs video taped the entire arrest. According to the government, defendant then confirmed the suspicions against him by turning in only 15 of the 18 packets (although he logged in 16).
This incident forms the sole basis for the charges in the indictment, filed November 30, 1989. Specifically, the indictment charges defendant with one federal and two local offenses, committed on August 25, 1988: 1) obstruction of justice in violation of 18 U.S.C. § 1503; 2) tampering with evidence in violation of 22 D.C. Code § 723; and 3) theft in violation of 22 D.C.Code §§ 3811, 3812. It is the sufficiency of the federal charge alone, however -- on which hinges this Court's jurisdiction over the case -- that is the subject of the present motion.
The Court has carefully analyzed the parties' contentions and is compelled to hold that the charge of obstruction of justice under 18 U.S.C. § 1503 in this case is fatally deficient on two, somewhat overlapping grounds: first, that there were no "judicial" proceedings pending at the time of defendant's conduct, and, second, that any imminent proceedings may not have been in federal court. To the extent defendant's remaining contention that "it was legally impossible for Officer Smith to obstruct justice in the manner alleged" bears on these issues, the Court rejects it.
A. Lack of Pending Judicial Proceedings
The Court's analysis, of course, must start with the language of the statute. Section 1503 provides, in full, as follows:
Influencing or injuring officer or juror generally
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, ...