The US Court of Appeals for the Sixth Circuit ruled in United States v. Carson that a defendant had violated the federal obstruction of justice statute, 18 USC § 1512(b)(3), by creating a false report six months prior to the start of a federal investigation. The defendant, a police officer, had colluded with several other officers to falsely state in their police reports that an arrestee had been the aggressor, thus triggering the officers' use of force.

At trial, the prosecution established that the officers' training had included instruction that the use of excessive force could lead to criminal charges against them under federal or state law. The Sixth Circuit found that this satisfied the knowledge element of the federal obstruction of justice statute with which the defendant was charged, because "a reasonable jury could conclude that [the officer] knew that writing a misleading report to cover up the use of excessive force might result in a federal investigation."

Following decisions from the First and Eleventh Circuits, the Sixth Circuit further found that a federal nexus existed even though the false reports were initially submitted to state authorities based on "the possibility or likelihood that [the defendant's] false and misleading information would be transferred to federal authorities irrespective of the governmental authority represented by the initial investigators." Distinguishing this case from the Supreme Court's interpretation of the requirements of § 1512(b)(2) in Arthur Andersen LLP v. United States, the Sixth Circuit rejected the argument that the mere potential for a federal investigation was insufficient to trigger liability because § 1512(b)(3) does not limit liability to conduct aimed at obstructing an "official proceeding." The government met its burden in proving a violation of § 1512(b)(3) because it had "presented sufficient evidence from which a reasonable jury could find that [the officer's] intent was to hinder the communication of truthful information to federal law enforcement officers when he provided misleading information to federal law enforcement officers."

The Sixth Circuit's decision increases the risk of federal criminal liability for obstruction of justice for companies operating in the United States. Like the police officer in Carson, American corporations operate in an environment where the specter of possible federal investigation is nearly always present and commonly understood. Particularly in heavily regulated industries, such as banking and energy, and at businesses that have received TARP funds, even routine business action can later be the subject of a federal investigation. The Carson case illustrates one reason why companies need to make certain that their business records are accurate: they may otherwise face the risk of liability for obstruction of justice. Experienced legal counsel familiar with a business's particular industry, the inclinations of federal investigators, and best practices for establishing internal controls can play an important role in protecting against such risk.

  • The Sixth Circuit's United States v. Carson decision can be found here.