United States v. Barry Simmons
591 F.2d 206, 1979 U.S. App. LEXIS 17817 (1979)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
For purposes of the federal obstruction of justice statute (18 U.S.C. § 1503), a grand jury investigation is considered 'pending' once law enforcement officials apply for and cause subpoenas to be issued for a sitting grand jury, even if the grand jury itself is not yet aware of the specific investigation or subpoena.
Facts:
- Barry Simmons worked as a writ server for the Philadelphia Traffic Court.
- In mid-July 1977, two of Simmons's deputy writ servers reported to the FBI that Simmons was involved in an illegal scheme to change dates on expired scofflaw notices and mail them.
- On July 28, 1977, the FBI secured a subpoena for the telephone company to produce records of calls from Simmons's business and private phones before a regularly sitting grand jury on August 5, 1977.
- On August 4, 1977, subpoenas were served on Simmons and several of his employees, directing them to appear before the grand jury on August 12, 1977, and to bring documents related to priority scofflaw notifications.
- Upon being served with a subpoena, Simmons destroyed documents in his possession that were mentioned in the subpoena.
- Simmons also instructed his employees on what to say to investigators.
Procedural Posture:
- Barry Simmons was indicted by a grand jury on August 12, 1978, on two counts of obstruction of justice.
- Simmons was convicted and sentenced after a jury trial in district court.
- Simmons appealed his conviction to the United States Court of Appeals for the Third Circuit, challenging the sufficiency of the evidence and the jury instruction regarding the pendency of a grand jury investigation.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a grand jury investigation qualify as 'pending' under 18 U.S.C. § 1503 (obstruction of justice) when an Assistant United States Attorney has issued subpoenas for a regularly sitting grand jury, but the grand jury itself has no knowledge of the subpoenas or the matters under investigation at the time of the alleged obstruction?
Opinions:
Majority - Adams, Circuit Judge
Yes, a grand jury investigation qualifies as 'pending' for obstruction of justice purposes when an Assistant United States Attorney issues subpoenas in furtherance of an actual grand jury investigation, even if the grand jury itself is not yet aware of the subpoenas or the specific matters. The Court affirmed the conviction, clarifying its previous ruling in United States v. Walasek. The Court rejected Simmons's argument that the grand jury must be cognizant of the investigation or subpoena, noting that requiring such awareness would frustrate the statute's purpose and ignore the reality of how grand jury subpoenas are issued. Grand jury subpoenas are typically instrumentalities of the United States Attorney's office, and imposing a rigid rule requiring formal grand jury involvement would create an artificial disparity between different stages of an investigation and could be easily circumvented by prosecutorial authorities. The crucial inquiry is whether the subpoena was issued 'in furtherance of an actual grand jury investigation, i. e., to secure a presently contemplated presentation of evidence before the grand jury,' as established in Walasek. The Court distinguished United States v. Ryan, where subpoenas were used purely as an administrative tool by the IRS without an actual grand jury investigation, which was not the case here.
Analysis:
This case significantly broadens the scope of 'pending' judicial proceedings for obstruction of justice charges under 18 U.S.C. § 1503, making it easier for prosecutors to charge individuals who attempt to obstruct an investigation early in the process. It clarifies that the grand jury's lack of awareness of a subpoena, or even the underlying investigation, does not preclude a finding of 'pendency.' This decision provides greater protection for the investigative stages leading up to formal grand jury presentation, deterring early acts of obstruction. It also reinforces the practical understanding of how AUSAs initiate grand jury inquiries, acknowledging their role in issuing subpoenas without direct, prior grand jury instruction, while maintaining a safeguard against pure administrative abuse (as seen in Ryan).
