CORE CRIMINAL LAW SUBJECTS: Crimes: Art. 134 - Obstructing Justice

2016 (October Term)

United States v. Reese, 76 M.J. 297 (a novel Article 134, UCMJ, offense charged by the government that was intended to charge the listed Article 134, UCMJ, offense of obstructing justice but relieved the government of having to prove two elements of obstructing justice and thereby reduced the government’s burden of proof, was barred by part IV, para. 60.c.(6)(c), of the MCM, a provision that prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework, and it therefore failed to state an offense).

2011 (September Term)

United States v. Ali, 71 M.J. 256 (the erroneous failure to reference the terminal elements of clauses 1 or 2 of Article 134, UCMJ, prejudice to good order or discipline or service discrediting conduct, in the specification alleging obstruction of justice did not materially prejudice appellant’s substantial rights, where he pleaded guilty to the offense in accordance with a pretrial agreement, the military judge explained the elements of prejudice to good order and discipline and service discrediting conduct to him during the providence inquiry, and he admitted during this inquiry that his conduct was prejudicial to good order and discipline). 

United States v. Rose, 71 M.J. 138 (a specification alleging obstruction of justice as a violation of Article 134, UCMJ, but failing to allege the terminal element of that offense, was erroneous but not prejudicial to the accused’s substantial rights, where during the guilty plea colloquy, the military judge listed and defined clauses 1 and 2 of the terminal element for the accused, and the accused described his actions and explained why his conduct was service discrediting and prejudicial to good order and discipline; thus, the record unambiguously reflects that the accused knew under what clauses he was pleading guilty and clearly understood the nature of the prohibited conduct as being in violation of clauses 1 and 2 of Article 134). 

2008 (September Term)

United States v. Ashby, 68 M.J. 108 (evidence that appellant had reason to believe there would be a criminal proceeding pending against him when he removed a videotape of his flight after the aircraft he piloted severed the cable supporting a gondola, causing the deaths of 20 passengers, and during the time appellant secreted the tape in his quarters until his co-accused destroyed the tape after learning that they were under criminal investigation by Italian authorities, was sufficient evidence to establish the elements of obstruction of justice, as that offense was incorporated into a charge of conduct unbecoming an officer). 


(one of the elements of obstruction of justice under Article 134, UCMJ, is that appellant knew or had reason to know that there would be “criminal proceedings” pending; although the MCM does not define “criminal proceedings,” in this case, nothing supports appellant’s contention that his conduct cannot be sustained as conduct unbecoming an officer because the criminal investigation that was impeded was foreign rather than domestic or military). 


United States v. Reeves, 61 M.J. 108 (the administration of justice is not criminally obstructed by a witness exercising that witness’s constitutional privilege against self-incrimination and the right to counsel).
(without more, a person’s advice to another to invoke certain rights, where the advice given is honest and uncorrupt, should not as a matter of law sustain a conviction to obstruction of justice; however, that does not mean, as a matter of law, that reference to advice as constitutional, precludes consideration as to whether that advice was indeed constitutional in nature, uncorrupt, and thus protected conduct for the purposes of obstruction under Article 134). 
(whether an accused’s conduct was wrongful and thus constituted obstruction of justice will turn on contextual factors presenting questions of fact for the members, including, among other things, the actor’s tone and manner of delivery; in those instances where the advice given is honest, uncorrupt, and disinterested, we agree that giving such advice is not wrongful; but one who advises, with a corrupt motive, that a witness exercise a constitutional right or privilege may obstruct the administration of justice; the lawful behavior of the person invoking the right cannot be used to protect the criminal behavior of the inducer; and this is the analytic approach taken by a majority of the federal circuits).
(as a matter of law, and under the circumstances of this case, an accused may be convicted of obstruction of justice by telling another not to speak to investigators and to seek counsel; the facts indicate that appellant was not a disinterested party; she was aware of the investigation into her conduct and that the person she advised to exercise her rights was a potential witness in that investigation; the nature and manner of her advice took her statements to the potential witness outside the zone of constitutional protection).
(a wrongful act is one done without legal justification or with some sinister purpose; advising a witness to exercise certain constitutional rights and privileges may be wrongful if accompanied by a corrupt motive to influence, impede, or otherwise obstruct the due administration of justice).      

(where the record indicates that shortly after being apprised she was under investigation for her conduct with another servicemember, appellant began frequently calling that servicemember at her workplace and home to advise her not to talk to a defense counsel or to law enforcement personnel, a rational trier of fact might have found beyond a reasonable doubt that appellant’s statements were wrongful and indicative of an intent to dissuade the servicemember from cooperating with the recently initiated investigation; even if one accepts for the sake of argument that telling a witness not to speak to investigators is tantamount to advising a witness of that witness’s right to silence, the tone, frequency, and background of appellant’s calls raised legitimate questions of fact for the members regarding the wrongfulness and intent of the calls).



United States v. Barner, 56 MJ 131 (court finds evidence legally sufficient to support findings of guilty to every element of obstruction of justice where: (1) military court members could have concluded that an attempt on the part of a senior drill instructor to get trainees to change their story for reasons relating to race was not only wrongful, but in the context of a basic training environment, prejudicial to good order and discipline; (2) appellant’s statement that "I’ll do anything if you don’t tell" and its converse implication of more severe treatment if the trainee did not accede was not consistent with the duties of a senior drill sergeant; (3) appellant’s request that one trainee write a statement against a complaining trainee sufficiently qualified as wrongful; (4) appellant knew his offense against the trainee had been reported and that the trainee was pursuing the matter; and (5) court members could reasonable conclude that a senior drill instructor to whom the initial offense had been reported had a duty to pursue the complaint lodged by the trainees).

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