The US Court of Appeals for the Tenth Circuit, in United States v. Erickson, held that "knowingly submitting fraudulent documents in response to a grand-jury subpoena constitutes obstruction of justice, when ... a grand-jury proceeding is underway and the defendant knows of it." Agreeing with the Sixth Circuit and rejecting the position of the Ninth Circuit, the Tenth Circuit ruled that the falsified documents need not be relevant to the grand jury's investigation to trigger liability for obstruction of justice under 18 USC § 1503(a) because "one who falsifies documents provided in response to a subpoena may well be 'endeavor[ing] to influence, obstruct, or impede' the grand jury." In light of the Supreme Court's holding in Osborn v. United States that impossibility is not a defense to a charge brought under § 1503, the Tenth Circuit rejected the argument that it would be impossible to influence or impede a grand jury investigation by submitting falsified documents bearing no relevance to the investigation. The court concluded that "it is difficult to imagine why one would falsify documents to be presented to a grand jury if one did not believe that the documents were relevant to the grand jury's investigation (and would affect that investigation)."

The Erickson case requires companies to take special care to ensure that no false documents are submitted in response to federal grand jury subpoenas. Companies need to have in place adequate controls to regulate the quality and accuracy of business information produced in day-to-day operations. Furthermore, legal advice should be sought in responding to grand jury subpoenas.

  • The Tenth Circuit's United States v. Erickson decision can be found here.