United States District Court, E.D. Virginia, Alexandria Division
For George Mark Jadue, Defendant: John C. Kiyonaga, LEAD ATTORNEY, The Law Office of John C Kiyonaga, Alexandria, VA.
For USA, Plaintiff: Jeffrey M. Tharp, William P. Jauquet, LEAD ATTORNEYS, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA; Eugene Joseph Rossi, United States Attorney's Office, Alexandria, VA.
Anthony J. Trenga, United States District Judge.
Following the close of the Government's case-in-chief, the Defendant, George Mark Jadue, made an oral Motion for a Judgment of Acquittal pursuant to Fed. R. Crim. P. 29, which the Court denied as to Count I, granted as to Count II, and reserved as to Count III, charging an attempt to obstruct justice. Following the close of all the evidence, the Defendant renewed that Motion as to Counts I and III, which the Court denied as to Count I and granted as to Count III. The Court issues this Memorandum Opinion in further support for its Order [Doc. No. 69] granting Defendant's Rule 29 Motion as to Count III.
The Superseding Indictment alleges in Count III the offense of attempted obstruction of justice in violation of 18 U.S.C. § 1512(c)(2). That statute makes it unlawful for " whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so." The Superseding Indictment alleges that the Defendant committed this offense on July 29, 2013, when he " contacted the Fraud Prevention Manager of the New Orleans Passport Center, a person with whom [Defendant] had worked in conducting visa fraud investigations, and asked the individual to pull sensitive passport information related to the DS Case Agent and the DS
Case Agent's father." Doc. No. 11 at 6. It is further alleged that " at the time [Defendant] made the request, he knew that his law enforcement privileges were suspended and that he had no right or need to request or receive the information." Id. The original Indictment was issued on December 19, 2013, and the Superseding Indictment issued on January 30, 2014. The Official proceeding is the present prosecution, and under 18 U.S.C. § 1512(f)(1), the conduct that constitutes the obstruction may precede the actual initiation of the official proceeding.
The Defendant's first position is that the Superseding Indictment fails to state an offense because it incorrectly states the crime as one of " corruptly attempt[ing] to obstruct, impede, and influence an official proceeding," rather than, an " attempt to corruptly obstruct, influence or impede," which the Court believes is the correct statement of the offense. Doc. No. 11 at 6. Nevertheless, the language of the Superseding Indictment is sufficient since it clearly states the offense charged and the facts relied upon are sufficiently stated to give the Defendant adequate notice of what he has been charged with and sufficient information upon which to raise a double jeopardy defense to a subsequent prosecution. See United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992) (" An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense." ) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). The Motion is therefore denied on that ground.
The Defendant's Motion must be granted, however, on the grounds that the Government has failed to adduce evidence sufficient to sustain a conviction for the offense of attempted obstruction of justice under 18 U.S.C. § 1512(c)(2). There is no statutory definition of the term " attempt." It has, however, been the subject of judicial interpretation and historically has been the subject of extensive jurisprudential debate, as the crime of attempt places in focus the two basic requirements of the criminal law -- first that a crime must consist not only of an intent, the mens rea or the guilty mind element, but also a guilty act, the actus reus, or the external, objective element of a crime. See United States v. Resendiz-Ponce, 549 U.S. 102, 106, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) (" At common law, the attempt to commit a crime was itself a crime if the perpetrator not only intended to commit the completed offense, but also performed some open deed tending to the execution of his intent." ) (internal quotations and citations omitted). In other words, it is not enough to intend a crime; that intent must be accompanied by conduct that is unlawful.
The crime of attempt, by definition, is not based on the conduct, or actus reus, that constitutes the substantive criminal offense whose commission was attempted, but other conduct remote from the actual commission of the underlying offense; and to that extent, the crime of attempt vitiates to a certain extent, the principle that it is not enough simply to intend a crime. Id. at 107 (" the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct." ). For this reason, courts have placed limits on the extent to which conduct, not constituting the commission of an offense, will nevertheless constitute an attempt to commit that offense. In that regard, it is required that the crime of attempt be based on conduct that evidences, not only an intent to commit a criminal offense, but conduct so substantial a step towards completion
of that criminal offense, that had that conduct been successful in its intended objective, it would have likely resulted in the completion of that criminal offense. See United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003) (" An attempt to commit a crime, which is recognized as a crime distinct from the crime intended by the attempt, punishes conduct that puts in motion events that would, from the defendant's point of view, result in the commission of a crime but for some intervening circumstance." ). In other words, the conduct that constitutes the attempt must bear such a relationship to the underlying offense that not only is the defendant's criminal intent sufficiently inferable, the natural consequence of his conduct is that, if uninterrupted, the underlying criminal act or offense would have been committed.
Citing earlier Fourth Circuit cases, the Model Penal Code, and various treatises, the Fourth Circuit held in Pratt that, in order " [t]o establish that a defendant committed the crime of attempt, the government must prove that (1) the defendant had the requisite intent to commit a crime; (2) the defendant undertook a direct act in a course of conduct planned to culminate in his commission of the crime; (3) the act was substantial, in that it was strongly corrobative of the defendant's criminal purpose; and (4) the act fell short of the commission of the intended crime due to intervening circumstances." Id. at 135 (citing United States v. Neal, 78 F.3d 901, 906 (4th Cir.1996); United States v. Sutton, 961 F.2d 476, 478 (4th Cir.1992); United States v. ...