Monday, August 3rd, 2009

Going Down!

United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)

Here, the circuit concluded that an internal BOP investigation into corrections officers’ use of force against an inmate constituted an “official proceeding” within the meaning of 18 U.S.C. § 1512. The court rejected the defendants’ sufficiency challenge and affirmed their convictions.

The case arose from the beating of an inmate by a CO in an elevator at the MDC. Two other CO’s watched the beating, although one of them finally put a stop to it, and all three were convicted of violating 18 U.S.C. § 1512(c) by making false statements in the paperwork that they were required to fill out by the BOP’s administrative procedures – various “use-of-force” memoranda.

The BOP investigates every use of force by a staff member. That investigation begins with the use-of-force paperwork, which is reviewed by an After-Action Review Committee that comprises the Warden and three other officials. This Committee must determine whether BOP policy was adhered to, and complete a report that includes its findings and a decision whether the incident requires further investigation. A use-of-force incident can be referred to the DOJ’s Inspector General, the BOP’s Internal Affairs bureau, or the FBI.

The statute at issue makes it a crime to “corruptly obstruct … an official proceeding,” which is defined, to the extent pertinent here, as “a proceeding before a Federal Government agency which is authorized by law.” 18 U.S.C. § 1515(a)(1)(C). At issue here was whether a BOP use-of-force investigation was an “official proceeding,” since such an investigation involves neither live witnesses nor sworn testimony.

The circuit, after considering three different precedent lines that might help interpret the term, decided not to follow any of them. It ducked the broader question of “[w]hether or not agency investigations in general can satisfy the official proceeding element of subsection 1512(c)(1),” and held that, here, the “particular procedures required by the BOP” in use-of-force situations “suffice to support a conviction.” The court’s focus was on the degree of formality required. The BOP Program Statement that governs use-of-force investigations “contemplates more than a preliminary investigation; it sets forth a detailed process of review and decision-making.” Accordingly, the court held, “[b]ecause the review panel must ‘determine’ if there has been a violation of BOP policy, must make ‘findings,’ and may ‘decide’ to refer the matter to senior departmental authorities, its work is sufficiently formal to satisfy the ‘official proceeding’ element of subsection 1512(c)(1).”

The defendants also challenged – on appeal only, no objection was registered at trial – the district court’s jury charge, which was arguably overbroad, since it included all “investigations as well as other administrative functions” of a government agency in the definition of “official proceeding.” But the circuit found no plain error.

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