The opinion of the court was delivered by: Friedman, District Judge.
This case is before the Court on defendants' Motion No. 5, to
dismiss those portions of Count 18 of the Superseding Indictment
relating to allegations of conspiracy to obstruct a congressional
investigation in violation of 18 U.S.C. § 371 and 1505. Upon
consideration of the defendants' motion, the government's
opposition, the defendants' reply and the arguments of counsel
presented in open court, the Court concludes that the defendants'
motion must be granted and that certain portions of Count 18
therefore must be stricken.
Count 18 of the Superseding Indictment charges the defendants
with a conspiracy that allegedly began in or about December 1996
and continued through in or about March 1997. See Superseding
Indictment at 30. It alleges that the defendants and others
"combined, conspired, and agreed" with each other (1) "corruptly
to obstruct the due administration of justice, that is, a federal
grand jury investigation, in violation of 18 U.S.C. § 1503," and
(2) "corruptly to obstruct the due administration of the law
under which an inquiry is being conducted, that is, a
congressional investigation, in violation of 18 U.S.C. § 1505."
Id. Count 18 alleges in relevant part that "[a]t all times
material to this Count, a Committee or Committees of the United
States Senate or the United States House of Representatives were
conducting an investigation or investigations of political
contributions" that had been made in the names of the defendants
or of Praitun Kanchanalak, or that "such an investigation or
investigations were reasonably foreseeable." Id. at 29.*fn1
According to the Indictment, the purpose of the conspiracy was to
"obstruct, impair, and impede ongoing or imminent federal grand
jury and congressional investigations." Id. at 30.
The Indictment goes on to set out a series of overt acts
including the alleged removal of records from corporate offices,
the dissolution of the corporation, the collection of inactive
corporate files, the retrieval of corporate files from the
corporation's accountant, the removal of boxes containing those
corporate records and files to a storage unit, the retrieval of
other corporate records by the defendants from an accountant, the
erasure of computer hard drives from several computers, and the
mutilation and/or discarding of documents responsive to a grand
jury subpoena. Superseding Indictment at 31-37.*fn2 The
Indictment also alleges that Ms. Kanchanalak received notice on
or about February 24, 1997 that a federal grand jury was seeking
to subpoena her and certain relevant records. Id. at 36. The
Indictment contains no allegations as to when the congressional
investigations began and when, if ever, the defendants received
notice of such investigations.
The Court concludes that defendants' first two arguments lack
merit but that Count 18 of the Superseding Indictment is
defective for the third reason articulated by defendants. The
Court therefore will strike the Section 1505 object of the
conspiracy and all references to the congressional investigation
from Count 18. As defendants acknowledged at the hearing,
however, the government can easily correct this defect by asking
the grand jury to return a second superseding indictment
containing the correct language.
A. The Poindexter Argument
In 1990, a jury convicted Admiral John Poindexter, President
Reagan's National Security Advisor, inter alia, on two counts
of obstruction of justice in violation of Section 1505 for making
false and/or misleading statements to congressional committees
and for participating in the preparation of a false chronology,
deleting information from his computer and arranging a meeting at
which Oliver North gave false statements. United States v.
Poindexter, 951 F.2d at 377. The court of appeals reversed
Admiral Poindexter's conviction, concluding that Section 1505 was
unconstitutionally vague as applied to his false and misleading
statements to Congress.*fn4 The court found the word "corruptly"
unconstitutionally vague as applied for two reasons: (1) applying
Section 1505 to the making of the false and misleading statements
at issue in the appeal would require an "intransitive" reading of
the word "corruptly" — i.e., defendant corrupts or defendant
becomes corrupt — rather than a "transitive" reading — i.e.,
defendant corrupts another by causing the other person to act
corruptly — and on its face, the statute favored a transitive
reading; and (2) the term "corruptly" was too vague to provide
constitutionally adequate notice that it proscribed lying to
Congress. Id. at 379. The Court therefore reversed Poindexter's
Section 1505 convictions. United States v. Poindexter, 951 F.2d
In response to the court's decision in Poindexter, Congress
enacted a statutory definition of the term "corruptly." For
purposes of Section 1505 only, "corruptly" now is defined by
statute as "acting with an improper purpose, personally or by
another, including making a false or misleading
statement, or withholding, concealing, altering, or destroying a
document or other information." 18 U.S.C. § 1515(b) (emphasis
added). With that definition, Congress clearly corrected the
first problem identified by the court in Poindexter. Persons
charged under Section 1505 now have notice that Congress intended
the word "corruptly" in Section 1505 to be used in both the
transitive and the intransitive sense, that is, both a defendant
who corrupts herself and a defendant who corrupts another can be
prosecuted under Section 1505.
Defendants contend, however, that the definition provided in
Section 1515(b) nonetheless remains unconstitutionally vague
because it does not provide sufficiently specific content to the
word "corruptly" for the reasons articulated by the Court in
Poindexter. The Court disagrees. Defendants may be correct that
the phrase "acting with an improper purpose," the first phrase in
the Section 1515(b) definition, does not alleviate the concerns
expressed by the court of appeals. See United States v.
Poindexter, 951 F.2d at 378 ("vague terms do not suddenly become
clear when they are defined by reference to other vague terms").
Nonetheless, the statute goes on to list the kinds of specific
conduct proscribed by Section 1505: "making a false or misleading
statement, or withholding, concealing, altering, or destroying a
document or other information." 18 U.S.C. § 1515(b). Since much
of the conduct allegedly taken by the defendants in this case
falls within that list, defendants are hard-pressed to argue that
they were not on notice that the term "corruptly" as defined by
Section 1515(b) extended to the conduct alleged in the
Superseding Indictment. See Superseding Indictment at ¶¶ 7-11.
The Court therefore concludes that "corruptly" as now defined by
statute is not unconstitutionally vague as applied to the conduct
alleged in the Superseding Indictment.
B. The "Pendency" Argument
The essential elements of a conspiracy charge are (1) an
agreement between two or more persons, (2) to commit an offense
or offenses against the United States, in this case to violate
two separate obstruction of justice statutes, 18 U.S.C. § 1503
and 1505, (3) with knowledge of the conspiracy and with actual
participation in it, where (4) one or more of the co-conspirators
takes an overt act in furtherance of the conspiracy. United
States v. Gatling, 96 F.3d 1511, 1518 (D.C.Cir. 1996). It is
settled that the agreement is the essence of the conspiracy;
provided that there is only one agreement, the government may
allege one conspiracy with multiple illegal objects. See
Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87
L.Ed. 23 (1942) ("Whether the object of a single agreement is to
commit one or many crimes, it is in either case that agreement
which constitutes the conspiracy which the statute punishes");
United States v. Treadwell, 760 F.2d 327, 334 (D.C.Cir. 1985)
("Because it is the conspiratorial agreement that the statute
punishes, a single agreement may have multiple objects"), cert.
denied, 474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986);
May v. United States, 175 F.2d 994, 1002 (D.C.Cir. 1949)
("neither a multiplicity of objects nor a multiplicity of means
converts a single conspiracy into more than one offense. . . .
`The conspiracy is the crime, and that is one, however diverse
its objects'") (quoting Frohwerk v. United States,
249 U.S. 204, 210, 39 S.Ct. 249, 63 L.Ed. 561 (1919)); United States v.
Trie, 23 F. Supp.2d 55, 59 (D.D.C. 1998).
To the extent that defendants maintain that the government must
prove that the defendants had knowledge that a congressional
investigation was foreseeable or imminent at the time that they
entered into the conspiratorial agreement, defendants clearly are
correct. See Developments in the Law — Criminal Conspiracy, 72
HARV.L.REV. 920, 930 (1959) ("Clearly, [the illegal object]
cannot be the object unless it is known to both parties"); Yates
v. United States, 354 U.S. 298, 329-31, 77 S.Ct. 1064, 1 L.Ed.2d
1356 (1957), overruled on other grounds by Burks v. United
States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United
States v. Andolschek, 142 F.2d 503, 507 (2d Cir. 1944) ("the
scope of the agreement actually made always measures the
conspiracy . . . [A criminal defendant must be aware of] the
common purposes as he understands them . . . [and] must accept
them and their implications, if he is to be charged with what
others may do in execution of them"). Cf. United States v.
Messerlian, 832 F.2d 778, 794 (3d Cir. 1987) (upholding jury
instruction on conspiracy to obstruct grand jury charge that
"authorized the jury to convict if the federal proceeding was
foreseeable to the conspirators and they willfully agreed to
engage in certain activities that they knew and intended would
obstruct justice in the anticipated federal proceeding should it
actually commence in the future") (emphasis added), cert.
denied, 485 U.S. 988, 108 S.Ct. 1291, 99 L.Ed.2d 501 (1988);
United States v. Perlstein, 126 F.2d 789, 795 (3d Cir.), cert.
denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942) ("We
can see no reason why persons who conspire ...