VIA UPS No. 1Z64589FP298242086 August 4, 2014 Chief Judge Manuel Menendez, Jr. Thirteenth Judicial Circuit Of Florida 800 E. Twiggs Street Tampa, Florida 33602-3500 RE: $2.25 MoneyGram money order enclosed, payable to B.O.C.C. for Judicial Records Request Advanced Payment Chief Judge Manuel Menendez, Jr.: Enclosed is a $2.25 MoneyGram money order, payable to B.O.C.C. for Judicial Records Request Advanced Payment pursuant to Mr. Stidham’s July 30, 2014 letter, also enclosed. Sincerely, Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida Telephone: (352) 854-7807 Email: [email protected]Enclosures: $2.25 MoneyGram money order, payable to B.O.C.C. for Judicial Records Request Advanced Payment; letter July 30, 2014 of Jeff Stidham, Public Information Officer
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Chief Judge Manuel Menendez-Thirteenth Judicial Circuit Florida-Public Records
Chief Judge Manuel Menendez, Jr.: This is a follow-up to Mr. Stidham’s June 16, 2014 response to my records request.
Thirteenth Judicial Circuit of Florida was created by the Constitution and Florida Statutes to administer, apply, and interpret the laws of the state of Florida in a fair and unbiased manner without, inter alia, bribery, favoritism, extortion, improper influence, personal self-enrichment, self-dealing, concealment, or conflict of interest.
Under Article V, Section 2(d), Fla. Const., Chief Judge Menendez “[S]shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit.”.
ARTICLE V, JUDICIARY, SECTION 2. Administration; practice and procedure.— (d) A chief judge in each circuit shall be chosen from among the circuit judges as provided by supreme court rule. The chief judge shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit.
Under Article II, Section 5(b), Fla. Const., Chief Judge Menendez swore an Oath of Office in the State of Florida on August 26, 2008: ARTICLE II, GENERAL PROVISIONS, SECTION 5. Public officers.— I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the State, and that I will well and faithfully perform the duties of Circuit Court Judge, Thirteenth Judicial Circuit, Group Nineteen, on which I am now about to enter, so help me God.
A copy of Judge’s Menendez’s Oath of Office August 26, 2008 is enclosed.
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VIA UPS No. 1Z64589FP298242086 August 4, 2014
Chief Judge Manuel Menendez, Jr.Thirteenth Judicial Circuit Of Florida800 E. Twiggs StreetTampa, Florida 33602-3500
RE: $2.25 MoneyGram money order enclosed, payable to B.O.C.C. forJudicial Records Request Advanced Payment
Chief Judge Manuel Menendez, Jr.:
Enclosed is a $2.25 MoneyGram money order, payable to B.O.C.C. for Judicial Records RequestAdvanced Payment pursuant to Mr. Stidham’s July 30, 2014 letter, also enclosed.
Enclosures: $2.25 MoneyGram money order, payable to B.O.C.C. for Judicial Records RequestAdvanced Payment; letter July 30, 2014 of Jeff Stidham, Public Information Officer
00
, • - • l ••• " " . 86·186INTERNATIONAL MONEY ORDER 11!31
MoneyGram.- (1;:;.····03 ..... 2014 To Validate: Touch the stop sign, 0
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'---:.:-:,,:::-,-:-.,:-:o=,y:-:o:::-,"'"THC"::"-::'TC"::U"'".-'~ FOR YOUR RECORDS I
MANTENGA UNA eoPIA DE ESTE REelBO PARA SUS ARCHIVOS
ADMINISTRATIVE OFFICE OF THE COURTS THIRTEENTH JUDICIAL CIRCUIT OF FLORIDA
MANUEL MENENDEZ, JR. MICHAEL L. BRIDENBACK CHIEF JUDGE COURT ADMINISTRATORJuly 30, 2014
Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida 34481
Dear Mr. Gillespie:
This is in response to your letter dated July 14, 2014, to Chief Judge Manuel Menendez, Jr. You have requested additional records. The cost for the additional public records you requested will be $2.25. Advance payment must be made by money order or cashiers check made payable to B.O.C.C. with a notation clearly stating Judicial Records Request Advanced Payment.
Number of Copies 15 @ $.015 per page $2.25
Upon receipt ofpayment, the copies will be released to the address shown above via U.S. mail.
Sincer~
---.tIl--N.... !J v~.IJ/ '-----
effStidham, Public Infonnation Officer
cc: The Honorable Manuel Menendez, Jr., Chief Judge
800 E. Twiggs Street • Room 604 • Tampa, Florida 33602 • Phone (813) 272-5894 • Fax (813) 272-5522
VIA UPS No. 1Z64589FP297793993 July 14, 2014
Chief Judge Manuel Menendez, Jr.Thirteenth Judicial Circuit Of Florida800 E. Twiggs StreetTampa, Florida 33602-3500
RE: Jeff Stidham’s June 16, 2014 response letter to records request, copy enclosed
Chief Judge Manuel Menendez, Jr.:
This is a follow-up to Mr. Stidham’s June 16, 2014 response to my records request.
Provide the loyalty oath, as a recipient of public funds from the state of Florida, that he/shesupports the Constitution of the United States, and Florida for,
David A. Rowland, General Counsel (if other than provided in his personnel file)Gonzalo B. Casares, ADA Coordinator (or any other position) none providedSandra L. Burge, Former Paralegal Assistant (if other than provided in her personnel file)
The records provided do not show information about, or referral to an investigative lawenforcement agency, for Mr. Rowland and/or Ms. Burge for their role in the fraud or impairmentof my SCOTUS Petition 12-7747, which is a federal crime:
U.S. Attorneys>USAM>Title 9, Criminal Resource Manual 925, Obstructing orImpairing Legitimate Government Activity (copy enclosed)
Under 18 U.S.C. § 371, the fraud or impairment of legitimate government activity maytake any of several forms:
1. Bribery of a government employee, kickbacks to government employees orextortion of money or favors by government employees, misrepresentations offinancial capability, alteration or falsification of official records, submission offalse documents; and2. Obstructing, in any manner, a legitimate governmental function.
Regarding Sandra L. Burge, who was formerly employed by Diana R. Esposito, Chief-AssistantAttorney General, Office of the Attorney General, Tampa, I could not locate any records in thepersonnel file of Ms. Burge about her departure as paralegal assistant for the Thirteenth Circuit.
Jeff Stidham, Court Public Information Officer July 14, 2014Thirteenth Judicial Circuit Of Florida Page - 2
Therefore for Ms. Burge provide records showing,
• The reason for Ms. Burge’s departure as paralegal assistant for the Thirteenth Circuit;• The identity of the person who held this position prior to Ms. Burge;• Whether or not Ms. Burge is currently employed by the Thirteenth Circuit;• Ms. Burge’s current employer, or current employer’s mailing address;• A better copy of the Supreme Court Internet & E-mail Policy Ms. Burge signed June 4, 2012,
showing the full text at the top of the page, and not cut off as on the enclosed copy.
The enclosed record of the Thirteenth Circuit’s solicitation for “a paralegal/administrativeassistant position in Tampa, Florida” shows “Resumes or completed applications must bereceived by 5:00 p.m. on Friday, April 20, 2012.”
• Provide records showing why Ms. Burge’s application dated June 4, 2012 was considered;• Provide records showing (or a list) of all applicants for this position;• Provide records showing this was a bona fide employment offer, including where the
position was posted or advertised, and for how long the $40,000 position was open.
David A. Rowland, General Counsel, member of The Florida Bar
As for David A. Rowland, provide records showing whether Chief Judge Menendez referred himto The Florida Bar for his role in the fraud or impairment of my SCOTUS Petition 12-7747.
As an attorney, Mr. Rowland is an Officer of the Court, and his conduct is subject to judicialsupervision and scrutiny:
Attorney is an officer of the court and an essential component of the administration ofjustice, and, as such, his conduct is subject to judicial supervision and scrutiny. State exrel. Florida Bar v. Evans, 94 So.2d 730 (1957).
As General Counsel for the Thirteenth Circuit, Mr. Rowland must comply with the Rules ofProfessional Conduct, including candor before the tribunal, as described in the Florida BarInformational Packet, Candor Before The Tribunal. “The lawyer's duty not to assist witnesses,including the lawyer's own client, in offering false evidence stems from the Rules of ProfessionalConduct, Florida statutes, and caselaw.”
Rule 4-1.2(d) prohibits the lawyer from assisting a client in conduct that the lawyerknows or reasonably should know is criminal or fraudulent.
Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witness to testifyfalsely.
Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct orknowingly assisting another to do so.
Jeff Stidham, Court Public Information Officer July 14, 2014Thirteenth Judicial Circuit Of Florida Page - 3
Rule 4-8.4(b) prohibits a lawyer from committing a criminal act that reflects adversely onthe lawyer's honesty, trustworthiness, or fitness as a lawyer.
Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud,deceit, or misrepresentation.
Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to theadministration of justice.
Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawyer reasonablybelieves necessary to prevent a client from committing a crime.
This rule, 4-3.3(a)(2), requires a lawyer to reveal a material fact to the tribunal whendisclosure is necessary to avoid assisting a criminal or fraudulent act by the client, and 4-3.3(a)(4) prohibits a lawyer from offering false evidence and requires the lawyer to takereasonable remedial measures when false material evidence has been offered.
Rule 4-1.16 prohibits a lawyer from representing a client if the representation will resultin a violation of the Rules of Professional Conduct or law and permits the lawyer towithdraw from representation if the client persists in a course of action that the lawyerreasonably believes is criminal or fraudulent or repugnant or imprudent. Rule 4-1.16(c)recognizes that notwithstanding good cause for terminating representation of a client, alawyer is obliged to continue representation if so ordered by a tribunal.
Florida caselaw prohibits lawyers from presenting false testimony or evidence. Kneale v.Williams, 30 So. 2d 284 (Fla. 1947), states that perpetration of a fraud is outside the scope of theprofessional duty of an attorney and no privilege attaches to communication between an attorneyand a client with respect to transactions constituting the making of a false claim or theperpetration of a fraud. Dodd v. The Florida Bar, 118 So. 2d 17 (Fla. 1960), reminds us that "thecourts are . . . dependent on members of the bar to . . . present the true facts of each cause . . . toenable the judge or the jury to [decide the facts] to which the law may be applied. When anattorney . . . allows false testimony . . . [the attorney] . . . makes it impossible for the scales [ofjustice] to balance." See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and The Fla. Bar v.Simons, 391 So. 2d 684 (Fla. 1980). To permit or assist a client or other witness to testify falselyis prohibited by F.S. § 837.02 which makes perjury in an official proceeding a felony, and byF.S. § 777.011 which proscribes aiding, abetting, or counseling commission of a felony.
Conclusion
Thirteenth Judicial Circuit of Florida was created by the Constitution and Florida Statutes toadminister, apply, and interpret the laws of the state of Florida in a fair and unbiased mannerwithout, inter alia, bribery, favoritism, extortion, improper influence, personal self-enrichment,self-dealing, concealment, or conflict of interest.
Jeff Stidham, Court Public Information Officer July 14, 2014Thirteenth Judicial Circuit Of Florida Page - 4
Under Article V, Section 2(d), Fla. Const., Chief Judge Menendez “[S]shall be responsible forthe administrative supervision of the circuit courts and county courts in his circuit.”.
ARTICLE V, JUDICIARY, SECTION 2. Administration; practice and procedure.—
(d) A chief judge in each circuit shall be chosen from among the circuit judges asprovided by supreme court rule. The chief judge shall be responsible for theadministrative supervision of the circuit courts and county courts in his circuit.
Under Article II, Section 5(b), Fla. Const., Chief Judge Menendez swore an Oath of Office in theState of Florida on August 26, 2008:
ARTICLE II, GENERAL PROVISIONS, SECTION 5. Public officers.—
I do solemnly swear (or affirm) that I will support, protect, and defend the Constitutionand Government of the United States and of the State of Florida; that I am duly qualifiedto hold office under the Constitution of the State, and that I will well and faithfullyperform the duties of Circuit Court Judge, Thirteenth Judicial Circuit, Group Nineteen,on which I am now about to enter, so help me God.
A copy of Judge’s Menendez’s Oath of Office August 26, 2008 is enclosed.
Thank you in advance for the courtesy of a response.
Sincerely,
Neil J. Gillespie8092 SW 115th Loop Telephone: (352) 854-7807Ocala, Florida Email: [email protected]
cc: Chief Judge Manuel Menendez, Jr. @ [email protected] [returned blocked]cc: Jeff Stidham @ [email protected] [returned blocked]cc: John F. Harkness, Executive Director, The Florida Bar @ [email protected]
Enclosures: Letter June 16, 2014 of Jeff Stidham, Court Public Information OfficerJudge’s Menendez’s Oath of Office, August 26, 2008Thirteenth Circuit’s solicitation for “a paralegal/administrative” positionEmployment application of Ms. Burge, dated June 4, 2012Supreme Court Internet & E-mail Policy Ms. Burge signed June 4, 2012Ms. Burge’s prior employment by Diana R. Esposito, Chief-Assistant Attorney General, TampaFlorida Bar Informational Packet, Candor Before The TribunalCriminal Resource Manual 925 Obstructing or Impairing Legitimate Government ActivityCriminal Resource Manual 1739 Offenses Related to Obstruction of Justice Offenses
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'c~:~~~fi:~V;i ADMINISTRATIVE OFFICE OF THE COURTS
THIRTEENTH JUDICIAL CIRCUIT OF FLORIDA
MANUEL MENENDEZ, JR. MICHAEL L. BRIDENBACK CHIEF JUDGE June 16, 2014 COURT ADMINISTRATIVE
Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida 34481
Mr. Gillespie:
This is in response to your letter dated June 6, 2014 received by Chief Judge Manuel Menendez, Jr. on June 9, 2014 along with your payment for the public records you requested on August 15, 2013.
Enclosed are the personnel files of David A. Rowland and Sandra L. Burge. Also enclosed are the records you requested in your May 16, 2013 and August 15, 2013 letters including the compact disc. A receipt for your payment of $89.40 is also included.
In response to your new public records request for the Public Officer's oath required by the Fla. Const., Art. II, Sec. 5(b) for Judges Manuel Menendez, Jr.; Claudia Rickert Isom; James M. Barton, II; Martha J. Cook; and James Arnold, the Thirteenth Judicial Circuit is not the custodian of the Public Officers' Oaths that you are requesting.
In regards to your request for the Public Officer's oaths for David A. Rowland and Gonzalo B. Casares, they are not members of State legislatures, executive officers, or judicial officers and are therefore not required to take the same oath required of public officers under 4 USC § 101.
eff Stidham, Public Infonnation Officer
Enclosures cc: The Honorable Manuel Menendez, Jr., Chief Judge
David A. Rowland, General Counsel Heather Thullbery, Personnel Director, Administrative Office of the Courts Sandra L. Burge, Fonner Paralegal Assistant
800 E. 1\viggs Street • Room 604 • Tampa, Florida 33602 • Phone (813) 272-5894 • Fax (813) 272-5522
OATH OF OFFICE Sl"A'fE OF FLORIDA
,/ -- ~ T ~ "'E. ~ .!..\ - I .••
1 do solemnly swear (or affirm) that J will support.. protect, and defend the Constitution and Government of the united States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the State, and that J wi)) well and faithfully perfoml the duties of
~OO ~:\~\!\.V &i. "* 6D::L Mc:~..~\)c.\ MCl~, '""3\.. Street or Post O~ Print name as you desire commission issued I ~~ f FL. 13'0"2 ~~ad~~~'City, Statl, Zip Code gnature
DS-DE 56 (Rev. OS/07)
LEGAL DEPARTMENT PARALEGAL / ADMINISTRATIVE ASSISTANT
Salary: $40,000, plus benefits.
The Thirteenth Judicial Circuit Legal Department is seeking to fill a paralegal/administrative assistant position in Tampa, Florida. The position will assist the circuit's general counsel, assistant general counsel and judicial staff attorneys in their responsibilities to provide advice, counsel, and legal research and writing to the 62 judges of the circuit. The successful applicant will perform a variety of paralegal and clerical duties including preparing legal correspondence, docull1ents and reports; performing legal and records research; processing of documents, forms and applications; organizing and maintaining filing systems; and basic copying and distribution services.
Applicants must have considerable knowledge of: Florida law; court procedures; rules of court; administrative orders of the chief judge; general office policies, procedures, and practices; English grammar, punctuation, and spelling. Applicants must also have the ability to: operate a computer to access automated databases; proficiently use word processing and other computer applications; compile, analyze, and organize data and information; proofread work; prioritize tasks and work under a tight schedule; deal tactfully and effectively with others; and provide assistance in legal office administrative practices and procedures. Discretion, honesty and confidentiality in handling matters before the court are essential.
Minimum Qualifications: Graduation from high school or possession of a GED certificate and five years of attorney-supervised
experience analyzing legal issues and conducting legal research of statutes, case law and other sources, and drafting legal documents; OR graduation from an accredited two-year degree granting college or university with a major in paralegal or legal assistance and three years of attorney-supervised experience analyzing legal issues and conducting legal research of statutes, case law and other sources, and drafting legal documents; OR successful completion of a program as a paralegal or legal assistant from an accredited vocation or technical school and three years of attorney-supervised experience analyzing legal issues and conducting legal research of statutes, case law and other sources, and drafting legal documents; OR graduation from an accredited four-year degree granting college or university and two years of attorneysupervised experience analyzing legal issues and conducting legal research of statutes, case law and other sources, and drafting legal documents.
Applicants must submit a cover letter and either a resume or State of Florida Employment Application to Tonya Muhammad at [email protected] or 800 East Twiggs Street, Suite 604, Tampa, Florida 33602. Submission bye-mail is preferred. If an accommodation is needed to participate in the application process, please call (813) 2725247 or use the Florida Relay Service (TTY): 1-800-955-8771, in advance.
Resumes or completed applications must be received by 5:00 p.m. on Friday, April 20, 2012.
The Stili 01 FIoncM doea not tolerate ~ In tlHf ~~.
Where to Find Vacancy InfottNdlon: Positaon Number: • 0... Ava": __. ~.._..._..."_" _
• On the.ntemet: httpu,fJobtdJteclMate.flu. Counlli. of InllftSt It i I f:, btru.~ ~ it • Jobl and Benetls Centers •CcniUI 'jQX bcaI te#sd'IaJe citac:by
• Stlt, Agency Personnel Offices
GENERAL iNSTRUCTiONS
• Type or print In Ink this application mtts entirety.
• SpecHy the podion tor whICh you .re appaying. (Nottr. A ........ application must be submitted for each vacancy. Photoccpl8l8re acceptable.)
• SutJm6t your application to the office aMounctng the vacancy no l.. l1an the do. of business on the Imounced deadl.... date.
• Sign your name In the C8rt1fication section (page 4). All InfOrmation you IUbtnit il subject to verification.
• NoIIfy the -oenCYI hiring authottty in advance if you require apecIIt dIaabItty accommodations to particIpate in the employment procesa.
UCENSE, REGfSTRATION OR CERTfFICATJON: Number Date Rot:etved EJp!ratlon Date St4te licc(tsmg AgenCI
KNOWLEDGE I SKILLS I ABILITIES (KIA.)
Ust KSAs you posse'l and belleve ,elevant to the poaillon you _k. such IS operating heavy equipment. computer skills, fluency in tanguage(s), etc.
EXEMPTION FROM PUBLIC RECORDS DISCLOSURE ARE YOU ACURRENT OR FORMER LAW ENFORCEMENT OFFlCER, OTHER EMPLOYEE" OR THE SPOUSE :1:.' OR CHILO OF ONE. WHO IS EXEMPT FROM PUBUC RECORDS DISCLOSURE UNDER §119.07, F.S.? 0 YES
··01her covered jobs lndude: correctional and oorrectionai probation office,.. firefighters. certain judges. as&jstant state attorneys, state attorneys, a ItItanl and statewide prosecutors, personnel d the Department of Revenue or locel governments whole re.pon.lJ~itie. inetude revenue collection and enforcement or chid support enforcement, and ctrtaanlnvestigators tn the Department of Chldren and Famll•• (see §119.07, F.S.).
BACKGROUND INFORMATION HAVE YOU EVER BEEN CONVICTED OF A FELONY OR A FtRST DEGREE MlSDeMEANOR? DYES ~o If "YES·, what charges?
Where convieted? _ Data 01 COnviction:
DYES ~o
Date:
HAVE YOU EVER HAD THE ADJUDICATION OF GUILT WITHHELD FOR A CRIME WHICH IS A FELONY OR A FIRST DEGREE MiSDEMEANOR? DVES ¥If -Yes-, what charges? Where? _ Date:
NOTE: A "YES" answer to these questions will not automatically bar you from employment. The nature. JotHetatedness. severity and date of tile offense in reldon to the position for which you ... applying are considered.
CITIZENSHIP
The State of Florida hires only U.S. citizens and lawfuny authorized alien workers. If a conditional offer of employment is made. you will be required to provide ldentlllcation and proof of cllizenship 01' authorization to WCl/I( in the U.S. ~ L ARE YOU AU.S. CITIZEN OR ARE YOU LEGALLY AUTHORIZED TO WORK IN THE U.S.? ~Es 0 NO
RELATIVES TO YOUR KNOWLEDGE. 00 YOU HAVE ANY RELATIVES WORKING IN THIS AGENCY? DYES
SELECTIVE SERVICE SYSTEM REGISTRATION
All males between the ages of 18 and 26 must be regis1ered with the Selective S8fVice System or exempted.
IF YOU ARE A MALE BETWEEN THE AGES OF 18 ANO 26. DO YOU HAVE PROOF OF REGlSTRAT10N WITH THE SELECTIVE SERVICE SYSTEM OR EXEMPTION FROM SUCH REGISTRATION? DYES ONO
CERTIFICATION
t am aware that any omilsJonl, falslflcatlons, mlnt.tementa, or mlarepreHntttlona above may disqualify me fOf' employment consideration and, if I am hired. may be grounds for termination at a fater date. runderstand that any information Igive may be investigated as allowed by law. I consent to the release of infofmation about my ability. employment hiStory. and fitne'$ for employment by ampfoyers, schools. law enforcement agencies. and oUler indivtduafs and organizations to investigators. personnel staff, and other authorized employees of Florida state government for employment purposes. ThtS consent shall continue to be effective during my employment KI am olr . I understand that applications submitted fOf slate employment are public recorda except as exempted above. I certify that to the best of my knOwledge and . II 01 the statements heretn and on any attachments are true. corrtet. complete, and made in good fai •
An)' person using Florida Supreme Court conlputer equipment to
acceS..fi lite lllterltel (eitlter to research sources on ti,e web or to send
e-mail) may flo so oilly for a purpose '"at is court- or law-related,
or that involves other legitimate matters.
"Court-related'S Ineans that the purpose furthers legitimate interests of the courts, including:
.. administration of the courts,
.. court security)
... computer security (including using the Internet to rnonitor or
investigate the activities of those who have broken or could break
the security of court computer systems),
... assisting the Justices or other Court staff in their activities both within
and without the Court,
... secretarial duties,
+ keeping abreast of trends in the administration of courts, and
.... keeping abreast of trends in the Internet and its programming
languages or protocols,
"Law-related" means that the purpose promotes a better understanding of the law and legal trends. Examples include:
... using the Internet for Court-related research, and
• developing skills necessary to use the Internet for research whether or not. the use immediately benefits the Court.
"Other legitimate matters" are communications or other activities relevant to an employee's personal life or family that do not detract from the Court\s dignity or routine functions, and that do not interfere with the timely perfonnance of the employee's nonnal work duties. Remember that e-mail messages that are sent from your work station to users outside the court go out under the Court's address, which is essentially the Courts's "'electronic letterhead." Thus, e·mail should not include any information that would reflect poorly on the Court (e.g., "off-color" comments or insensitive jokes). Furthennore) mass
e-mail forwardings which are not related to Court business should be avoided whether the recipients are Court users or outside the Court, Do not fOIWard email reports about computer viruses or ways to make money, since most of these prove to be hoaxes,
Individual users must personally pay for any fee-charging service accessed on the Internet unless the use is approved in advance by the department head.
PERIODS OF EM PLOYMENT Describe aU work experience in detail l .:ginning with your current or most recen\.. ,D. Include military service (indicate rank), internships and job-related volunteer work, if applicable. Indicate number of employees supervised. Use a separate block to describe each position or gap in employment. If needed, attach additional sheets, using the same format as on the a lication. All information in this section must be com feted. Resumes may be attached to rovide additional information.
Name of Present or Last Employer: ~of the Attornev General - Thmo~ Civil Division
Address: ~Ol E Kennedy Blvd. Suite 1100 Your Job Title: karale~al Specialist
Supervisor's Name:
From:
Duties and Responsibilities:
biaoa R Esposito Phone No.: ~813)233-2880 II _~nsert I 1012005 I To: stolrl Hours Per Week: bo ha I
(MM/YVVY) , (MM/yyyy) (Your name if different during employment)
sist attorneys in defense of the State and its agencies in civil litigation. esearch/lnvestigate peoplej backgrounds; litigation history; relevant facts and entities where dditional facts may be available; statutory, Administrative Code and case law authorities. oordinate case calendar and discovery; schedule depositions; interviews; and hearings. repare for trial; assemble and mark exhibits; assist attorney during trial as needed. Draft retrial statements and jury instructions.
Reason For Leaving: Ethere~ ,-----------,~--~--
Name of Previous Employer: bcott Marshall Esc
Address: b3BO·Qrew S; Suite 4 C'ea;fater EI 33765 Your Job Title: [e~ff;ce ReceDtionist-~
ccepted position with the Attorney General's office.
Supervisor's Name: bcott Marshall Phone No.: b27l669-226Z Il!nsert I From: 62L2005 I To: lllJ2005_J Hours Per Week: 135 =J ba 1
(MM/yyyy) (MM/VVVV) (Your name if different during employment)
Numerous defense attorneys have requested an advisory opinion concerning their
obligation to disclose, or not to disclose, before a client is sentenced for a criminal offense, that
the client has a record of prior convictions. The question usually arises in DUI cases. It appears
that prosecutors sometimes do not discover the defendant's out-of-state prior convictions. The
defense attorney knows of the priors either because the client volunteered the information or
because the attorney independently discovered the priors in the course of the representation.
Repeat DUI offenders are sentenced more harshly than first-time offenders.
Defense counsel's information about the client's prior convictions, volunteered by the
client or independently discovered by the attorney in the course of the representation, is either a
confidence or a secret of the client within the meaning of DR 4-101. DR 4-101(A) defines
“confidence” as “information protected by the attorney-client privilege under applicable law.”
“Secrets” are defined as “other information gained in the professional relationship that the client
has requested be held inviolate or the disclosure of which would be embarrassing or would be
likely to be detrimental to the client.” EC 4-4 explains that an attorney's ethical obligation to
guard the confidences and secrets of a client “exists without regard to the nature or source of
information or the fact that others share the knowledge.”
With certain limited exceptions, DR 4-101 forbids an attorney to reveal confidences or
secrets except with the consent of the client. The exception that may be applicable to information
about prior convictions is DR 4-101(C)(2), which permits a lawyer to reveal confidences or
secrets “when permitted under disciplinary rules.”
An attorney's conduct in judicial proceedings is governed by Canon 7 of the Code of
Professional Responsibility. DR 7-101(A) forbids an attorney to intentionally:
(3) Prejudice or damage his client during the course of the professional
relationship, except as required under DR 7-102(B).”
DR 7-102 provides in pertinent part:
19
(A) In his representation of a client, a lawyer shall not:
(3) Conceal or knowingly fail to disclose that which he is required by law to
reveal;
(4) Knowingly use perjured testimony or false evidence;
(5) Knowingly make a false statement of fact; . . .
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representaiton, perpetrated a fraud upon a
person or tribunal shall promptly call upon his client to reveal the same, and if his
client refuses or is unable to do so, he shall reveal the fraud to the affected person
or tribunal.”
With reference to DR 7-102(A)(3), the Committee is unaware of any law that places an
affirmative obligation upon criminal defense counsel to disclose his client's criminal record.
Under DR 7-102(A)(4), a lawyer should not permit his client to falsely state to the court that the
client has no prior convictions. Under DR 7-102(A)(5), a lawyer could not himself falsely state to
the court that the client had no priors. DR 7-102(B)(1), in conjunction with DR 4-101(C)(2),
would require a lawyer whose client had falsely stated to the court that there were no priors to
call upon his client to rectify such fraud on the court and to do so himself if the client refused.
Opinion 75-19.
On the basis of the disciplinary rules and the ethical obligations discussed above, the
Committee reaches the following conclusions: (1) When it appears to the lawyer that the court is
about to impose sentence based on incomplete or inaccurate information as to the defendant's
record of prior convictions, the lawyer has no duty to correct that information, provided that the
lawyer or the client had not affirmatively misrepresented to the court that there were no priors.
(2) If asked directly by the court whether the client has any prior convictions, the attorney must
protect his client's constitutional guarantees. See, e.g., Meehan v. State, 397 So.2d 1214 (Fla. 2d
DCA 1981).
20
PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 82-3
May 20, 1982
An attorney who learns that his former client has committed a fraud upon a person or
tribunal during the attorney's representation may reveal the fraud to the court only if the client's
fraud is clearly established under the guidelines of DR 7-102(B).
CPR: DR 4-101, DR 7-102, EC 8-5
Opinion: 75-19
Chairman Ervin stated the opinion of the committee:
A Florida attorney inquires whether he has received information clearly establishing that
his former client has committed a fraud upon a person or tribunal during the attorney's
representation, so as to give rise to a duty of the attorney to take further action pursuant to DR
7-102(B), Florida Code of Professional Responsibility.
The attorney recites that during the course of his representation of two clients, he
prepared for execution by one client, and by an employee-witness, affidavits reciting the facts
and date of resignation of the client as a director and officer of a corporation. As a part of
pending proceedings, the other client, a relative of first client, testified at deposition as to fact and
date of resignation. The affidavits were submitted to the court during pretrial proceedings. The
fact of resignation and time of same were of significant importance to the ongoing litigation.
The attorney has, with approval of the court, withdrawn from representation of the
clients. He recites his present doubt as to the truthfulness of the prior affidavits and depositions
based upon undescribed “credibility problems” he experienced with the clients prior to
withdrawal, together with the fact that the client signed one written communication to the lawyer
in a form indicating corporate officer status long after the purported date of resignation, and later
fabricated and attempted to persuade the attorney to accept a backdated, substitute written
communication not so indicating.
The attorney recites that his two former clients and the employee-witness have steadfastly
maintained that the affidavits and depositions are true.
Since the information which has caused the attorney's doubt was secured from the client
during the course of representation, DR 4-101 of the Florida Code must be first considered. That
rule provides, in pertinent part, that:
DR 4-101 Preservation of Confidences and Secrets of a Client.
21
(A) “Confidence” refers to information protected by the attorneyclient privilege
under applicable law, and “secret” refers to other information gained in the
professional relationship that the client has requested be held inviolate or the
disclosure of which would be embarrassing or would be likely to be detrimental to
the client.
(B) Except when permitted under DR 4-101(C) and (D), a lawyer shall not
knowingly:
(1) Reveal a confidence or secret of his client.
* * *
(C) A lawyer may reveal:
* * *
(2) Confidences or secrets when permitted under disciplinary rules.
* * *
(D) A lawyer shall reveal:
(1) Confidences or secrets when required by law provided that a lawyer required
by a tribunal to make such a disclosure may first avail himself of all appellate
remedies available to him.
(2) The intention of his client to commit a crime and the information necessary to
prevent the crime.
* * *
(Emphasis supplied.)
The information possessed by the inquiring attorney was gained in the professional
relationship and its disclosure would be embarrassing or detrimental to the client, so it is clearly a
“secret,” and may be a “confidence” as well, under the terms of DR 4-101(A). Under the terms of
subsection (B), the information may not be disclosed by the attorney unless disclosure is
authorized, or required, by one of the exceptions set forth in subsections (C) or (D).
Subsection (D) would appear inapplicable in that no law has been cited compelling an
attorney to disclose past untruthfulness of his client; no tribunal seeks to compel disclosure; and
an attorney is not required under subsection (2) to reveal a completed crime (i.e., perjury) by his
22
client. It is noted that DR 4-101(D)(2) of the Florida Code is substantially broader than the
corresponding American Bar Association provision in requiring an attorney to disclose his
client's intention to commit any crime.
23
The Florida provision is, however, prospective in operation and applies only to intended,
but not yet committed, crimes of a client.
Subsection (C) of DR 4-101 requires further analysis. That provision authorizes an
attorney to reveal confidences or secrets of a client “when permitted under disciplinary rules.”
This provision, in turn, makes pertinent DR 7-102(B) of the Florida Code, which provides:
DR 7-102 Representing a Client Within the Bounds of the Law.
* * *
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a
person or tribunal shall promptly call upon his client to rectify the same, and if his
client refuses or is unable to do so, he shall reveal the fraud to the affected person
or tribunal.
(2) A person other than his client has perpetrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribunal.
(Emphasis supplied.)
The above-quoted provision was considered at length in prior Advisory Opinion 75-19 wherein it
was noted that the corresponding provision of the American Bar Association Code had been
amended to except from the duty of disclosure information protected as privileged
communication.
Guided by the absence of such an exception in the Florida Code, in Advisory Opinion
75-19 this Committee expressed its opinion that an attorney, upon learning from his client that
the client had deliberately lied at a deposition, was required to withdraw from the representation
and to reveal the fraud to the court if the client refused to rectify the false testimony.
A contrary conclusion as to duty of disclosure is at least arguably suggested by EC 8-5 of
the Florida Code, which provides as follows:
EC 8-5 Fraudulent, deceptive, or otherwise illegal conduct by a participant in a
proceeding before a tribunal or legislative body is inconsistent with fair
administration of justice, and it should never be participated in or condoned by
lawyers. Unless constrained by his obligation to preserve the confidences and
secrets of his client, a lawyer should reveal to appropriate authorities any
knowledge he may have of such improper conduct.
24
(Emphasis supplied.)
The Committee is of the opinion, however, that there is no real conflict or inconsistency
between DR 7-102(B) and EC 8-5. Where the circumstances required by DR 7-102(B) are
present, the attorney is not constrained by an obligation to preserve the confidences or secrets of
his client (as to the fraud) and disclosure must be made. This is, of course, consistent with the
aspirational guideline of EC 8-5.
On the other hand, where the requirements of DR 7-102(B) are not met, then pursuant to
DR 4-101(B), the attorney is so constrained and should not make disclosure. This circumstance is
excepted from the aspirational guideline of EC 8-5. Properly viewed, EC 8-5 is merely reflective
of the commands of DR 4-101(B) and exceptions recognized in that subsection.
The Committee, therefore, adheres to its prior Advisory Opinion 75-19, to the effect that
under the circumstances described in DR 7-102(B) of the Florida Code, an attorney is required to
disclose even confidences or secrets of his client. The Supreme Court of Florida, in adopting the
Florida Code in its present form, has recognized and mandated this limited exception to the
ordinary attorney-client relationship in order to preserve the integrity of the system of
administration of justice.
The exception is, however, limited by its own terms. DR 7-102(B) requires disclosure
only where the attorney:
. . . receives information clearly establishing that:
(1) his client has, in the course of the representation, perpetrated a fraud upon a
person or tribunal. . . .
(Emphasis supplied.)
Thus, the Supreme Court has commanded that the confidentiality of the attorney-client
relationship will be sacrificed only where the client's fraud is clearly established to have occurred
during the representation.
In prior Advisory Opinion 75-19 the client had expressly confirmed to the attorney that he
(the client) knew the true facts and had deliberately lied under oath to conceal his assets. Thus,
the attorney possessed more than adequate information “clearly establishing” the client's fraud on
the tribunal during the lawyer's representation and disclosure was required.
No such definitive factual situation is presented in this inquiry, in that: (1) The inquiring
attorney's former clients, and a third party, steadfastly maintain that the prior statements
regarding corporate resignation were true; (2) the form of signature indicating to the contrary
25
could conceivably have been simple mistake; (3) the attempt to substitute communications to the
attorney could have been intended to correct a potentially embarrassing mistake rather than
conceal evidence of perjury; and (4) the inquiry is based in part on undescribed “credibility
problems” experienced between the clients and inquiring attorney during the representation.
Under such circumstances, this Committee is of the opinion that it can provide guidance
only in the form of emphasizing that under DR 7-102(B) the test or standard is that the
information possessed must “clearly establish” fraud on the tribunal. The Committee is not a
fact-finding body, nor is it able to glean from limited correspondence, and then weigh, all the
subjective factors and factual considerations which would enter into the determination of whether
fraud is “clearly” established.
The responsibility for this factual determination must remain with the inquiring lawyer.
The foregoing is the opinion of a majority of the Professional Ethics Committee and is
hereby adopted as the Committee's proposed advisory opinion. One member of the Committee
would agree with the “clear establishment” test as set forth above, but would apply a continuing
wrong principle if the subject litigation was not concluded. One member of the Committee is of
the opinion that the facts as presented fall short of “clearly establishing” fraud on a tribunal, and
that the Committee's opinion should proscribe disclosure.
26
PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 75-19
March 15, 1977
An attorney who learns from his client that the client deliberately lied at a deposition
must withdraw from the representation and must reveal the fraud to the court if the client refuses
to rectify it.
Note: This opinion was affirmed by the Professional Ethics Committee at its meeting on June
18, 1998. The Committee affirmed that a material misrepresentation during a deposition,
regardless of whether the deposition has been filed with the court, requires that the attorney take
remedial measures under Rule 4-3.3.
CPR: EC 7-6, EC 7-26; DR 4-101(B),(C) and (D), DR 7-102(B)(1) [DR 7-102(B)(1)
superseded by Rule 4-3.3]
Opinions: ABA Formal 268, 274. 341; ABA Informal 1314, 1318
Case: McKissick v. United States, 379 F.2d 754 (5th Cir. 1967)
Misc.: Drinker, Legal Ethics, p. 141
Vice Chairman Lehan stated the opinion of the committee:
A lawyer inquires as to whether he has a duty to disclose perjury committed by his client
in a divorce proceeding deposition wherein the client lied as to certain assets. The lawyer was
aware of the true facts during the deposition but was not aware that the client had deliberately
lied until after the deposition when the lawyer, in private conversation with the client, asked
whether the client knew the true facts and the client responded that he did and that he had
deliberately lied to conceal assets. In the inquiry, the lawyer recognizes his duty to withdraw
from the employment, and the Committee unanimously agrees.
DR 7-102(B)(1) provides that “A lawyer who receives information clearly establishing
that . . . his client has, in the course of the representation, perpetrated a fraud upon a person or
tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is
unable to do so, he shall reveal the fraud to the affected person or tribunal.” The majority of the
Committee feels that a fraud has been perpetrated upon the court and the opposing party by such
perjury in a deposition and that further fraud would be perpetrated by permitting use in litigation
of a perjured deposition, such as the one referred to in the inquiry, or by later testimony in like
fashion before the court if the deposition itself should not be used in evidence.
The inquiry is silent as to whether the lawyer, upon learning of the perjury, specifically
called upon the client to rectify same. Certainly the lawyer has a duty to do so. For the purpose of
this opinion the Committee finds implicit in the inquiry the facts that the lawyer did so call upon
the client and that the client refused to rectify the perjury.
27
DR 7-102(B)(1) does not specifically refer to information received from the lawyer's
client; however, neither does it purport to limit in any way the sources from which information of
the type described may be received. Therefore the Committee majority feels that that provision of
the CPR is inclusive of information from clients. By referring to the requirement that the lawyer
call upon the client to rectify the fraud and, if the client refuses, the lawyer shall reveal the fraud
to the court, the provision may contemplate implicitly that such revelation to the court will
necessarily involve the client as a source of at least part of such information.
Under Canon 4, relating to confidences of a client, DR 4-101(D)(2) provides that “A
lawyer shall reveal . . . the intention of his client to commit a crime and the information
necessary to prevent the crime.” Although under the circumstances indicated in the inquiry the
perjury had already been committed when the lawyer ascertained positively that the client had
deliberately lied, the inquiry would seem to involve either further use of the deposition, which
would involve at least furtherance of the crime, or, if the client were to testify in court,
information concerning the intention of the client to perjure himself before the court. Therefore,
4-101(D)(2) would appear applicable. See also McKissick v. United States, 379 F. 2d 754, 761
(5th Cir. 1967), saying that perjury is a continuing offense so long as allowed to remain in the
record to influence the outcome.
Other provisions of Canon 4 are relevant. DR 4-101(B) provides that a lawyer shall not
reveal confidences of his client “except when permitted under DR 4-101(C) and (D).” Under
4-101(C), “a lawyer may reveal . . . confidences or secrets when permitted under disciplinary
rules.”
EC 7-26 provides that “The law and disciplinary rules prohibit the use of fraudulent,
false, or perjured testimony or evidence,” and EC 7-6 states that a lawyer “may not do anything
furthering the creation or preservation of false evidence.”
In short, the Committee majority feels that the attorney-client privilege is not to be
preserved at all costs, or at the cost of the principles represented by DR 7-102(B); that the Code
of Professional Responsibility has specific application to the present inquiry; and that the
attorney must disclose the fraud to the court. It may be that in most such situations the lawyer's
action in calling upon the client to rectify the fraud would dispose of the problem so that the
lawyer need not himself make disclosure to the court.
In McKissick v. United States, 379 F. 2d 754, 761, 762 (5th Cir. 1967), which involved a
lawyer's report to the court of a client's admission to the lawyer of perjury, the Fifth Circuit took
the strong position that the lawyer fulfilled his duty in so reporting to the court and that if he had
not done so, he would have been subject to discipline. In a footnote the Fifth Circuit said:
Drinker, Legal Ethics 141 (1953): “A lawyer learning of fraud practiced by
his client on a court * * * which the client declines to disclose must inform the
injured parties, and withdraw from the case, despite Canon 37 [of the Canons of
Professional Ethics of the American Bar Association, this Canon covering the
lawyer's duty to preserve his client's confidence].” See also Canon 29 which
28
provides in part: “The counsel upon the trial of cause in which perjury has been
committed owe it to the profession and to the public to bring the matter to the
knowledge of the prosecuting authorities.” We feel this duty may be equally
discharged by disclosure to the court itself. Disciplinary measures have been
successfully taken against attorneys who have continued with a civil case knowing
that their clients had presented perjured testimony . . . In re King, 7 Utah 2d 258,
322 P. 2d 1095 (1958) the court commented, “We cannot permit a member of the
bar to exonerate himself from failure to disclose known perjury by a * * *
statement * * * he had a duty of nondisclosure so as to protect his client which is
paramount to his duty to disclose the same to the court, of which he is an officer,
and to which he in fact, owes a primary duty under circumstances such as are
evidenced in this case.” 322 P. 2d at 1097. But compare Gold, Split Loyalty: An
Ethical Problem for the Criminal Defense Lawyer, 14 Clev.-Mar. L. Rev. 65,
69-70(1965).
379 F. 2d at p. 761, N.2.
This Committee opinion has reference only to such crime and type of fraud committed by
the client in the course of the lawyer's representation of the client.
The Committee recognizes that the current ABA version of the Code of Professional
Responsibility includes amendment of DR 7-102(B) to specifically provide for the conflict under
these circumstances between a lawyer's duty to the court and his duty to his client. That ABA
version differs from the Florida CPR in having, by such amendment, added the following proviso
to DR 7-102(B): “except when the information is protected as privileged communication.” See
ABA Formal Opinion 341 and ABA Informal Opinions 1314 and 1318. Whether the Florida
Code of Professional Responsibility should also be so amended would be a matter for the
consideration of the Supreme Court of Florida.
Two members of the Committee feel that disclosure of some type by the lawyer is
necessary but that the lawyer should simply advise the Court that use of the deposition in favor of
the client would, for reasons which the lawyer cannot disclose, constitute a fraud upon the court.
A substantial minority of the Committee feels that the protection of the confidences of a
client is of paramount importance; that Canon 4 specifically concerns protection of confidential
information received from a client whereas Canon 7 does not specifically relate to information
from the client; that under the inquiry the perjury had already been committed, therefore DR
4-101(D)(2) does not apply; and that the attorney should resign from the employment and take no
further action. See ABA Formal Opinion 268 and ABA Formal Opinion 274, both written under
the Canons of Professional Ethics. Opinion 268 states: “While ordinarily it is the duty of a
lawyer, as an officer of the court, to disclose to the court any fraud that he believes is being
practiced on the court, this duty does not transcend that to preserve the client's confidences.”
Also, the Committee minority feels that the exception added to the ABA version of DR 7-102(B)
should be found implicit in Florida DR 7-102(B) and that, in any event, the Florida Supreme
29
Court should be asked to so amend the Florida Code of Professional Responsibility for the
reasons stated in ABA Formal Opinion 341.
US Attorneys > USAM > Title 9 > Criminal Resource Manual 925prev | next | Criminal Resource Manual
Under 18 U.S.C. § 371, the fraud or impairment of legitimate government activity may take any of severalforms:
Bribery of a government employee, kickbacks to government employees or extortion of money orfavors by government employees, misrepresentations of financial capability, alteration or falsificationof official records, submission of false documents; and
1.
Obstructing, in any manner, a legitimate governmental function.2.
US Attorneys > USAM > Title 9 > Criminal Resource Manual 1739prev | next | Criminal Resource Manual
Conduct within the purview of the obstruction of justice statutes may also violate one or more of thefollowing statutes:
18 U.S.C. §§ 1111, 1112, and 1114--interference with, assaults on, or killing of Federal judges andprosecutors, (overlap with 18 U.S.C. §§ 1503, 1512, and 1513). See United States v. Houlihan, 937 F. Supp.75, 76 (D. Mass. 1996).
A.
18 U.S.C. § 201(a), (b) and (c)--bribery of Federal public officials and witnesses (overlap with 18 U.S.C.§§ 1503 and 1505 (public officials) and 18 U.S.C. § 1512 (witness)). Subsection (e) of this statute providesthat the offenses and penalties in this section are separate from and in addition to those in 18 U.S.C. §§ 1503,1504, and 1505. See United States v. DeAlesandro, 361 F.2d 694, 699-700 (2d Cir.), cert. denied, 385 U.S.842 (1966). [NOTE: Subsection (k) as cited in DeAlesandro was redesignated as subsection (e), Pub. L. No.99-646, § 46(k), 100 Stat. 3604 (amended 1986).]
B.
18 U.S.C. § 241--conspiracy to injure or intimidate any citizen on account of his or her exercise or possibilityof exercise of Federal right (overlap with 18 U.S.C. §§ 1503, 1510, 1512, and 1513). Under 18 U.S.C. § 241,it is a Federal offense to conspire to injure a citizen for having exercised a Federal right or to conspire tointimidate a citizen from exercising a Federal right. One such right is the right to be a witness in a Federalcourt, United States v. Dinome, 954 F.2d 839, 845 (2d Cir.), cert. denied, 506 U.S. 830 (1992); United Statesv. Thevis, 665 F.2d 616, 626 (5th Cir.), cert. denied, 456 U.S. 1008, and cert. denied, 458 U.S. 1109, andcert. denied, 459 U.S. 825 (1982); or other Federal proceeding, United States v. Smith, 623 F.2d 627, 629(9th Cir. 1980). "So is the right to inform Federal officials of violations of Federal laws." Id.
C.
18 U.S.C. § 245(b)(1)(D), (2)(D), (4)(A), and (5)--intimidating or retaliating against individuals on account oftheir serving or possibly serving as a grand or petit juror in a Federal court (overlap with 18 U.S.C. § 1503)or on account of their serving or possibly serving as a grand or petit juror in a state court if the conduct ismotivated by the race, color, religion, or national origin of the victim.
D.
18 U.S.C. §§ 371 and 372--conspiracies to commit any offense against the United States, or to prevent orretaliate in response to the lawful discharge of the duties of Federal officers (overlap with 18 U.S.C. §§ 1503, 1505, 1510, 1512, and 1513). see generally United States v. Frankhauser, 80 F.3d 641, 653 (1st Cir.1996) (conspiracy to persuade witness to destroy or conceal evidence for use in an official proceeding);United States v. Fullbright, 69 F.3d 1468, 1472 (9th Cir. 1995) (conspiracy to mail arrest warrants to aUnited States Bankruptcy Judge); United States v. Mullins, 22 F.3d 1365, 1367 (6th Cir. 1994) (conspiracy toalter flight log books of police officers to prevent information from reaching the grand jury); United States v.Jeter, 775 F.2d 670, 683 (5th Cir. 1985) (conspiracy to obtain secret grand jury information), cert. denied,475 U.S. 1142 (1986).
E.
18 U.S.C. § 401--contempt of court (overlaps with 18 U.S.C. § 1503). Contemptuous conduct in thepresence of the court is specifically covered by 18 U.S.C. § 401; however, such conduct may also satisfy theelements of 18 U.S.C. § 1503. In that situation, a defendant may be charged under 18 U.S.C. § 1503 eventhough the offense conduct occurred in the presence of the court. See, e.g., United States v. Jones, 663 F.2d567, 569 (5th Cir. 1981) (threat directed at judge and prosecutor).
F.
18 U.S.C. § 1001--false statements and concealment of material facts before Federal departments andagencies (overlap with 18 U.S.C. § 1505).
18 U.S.C. §§ 1621 to 1623--perjury, subornation of perjury, and false declarations before grand juries andcourts (overlap with 18 U.S.C. §§ 1503, 1505, and 1512). It has been held by at least one court that simpleperjury, the assertion of a false affirmative statement by an individual testifying under oath, is not anobstruction of justice under the omnibus clause of 18 U.S.C. § 1503. See United States v. Faudman, 640 F.2d20, 23 (6th Cir. 1981); United States v. Essex, 407 F.2d 214, 218 (6th Cir. 1969). But see United States v.Griffin, 589 F.2d 200, 203, 204 (5th Cir.) (dicta), cert. denied, 444 U.S. 825 (1979); cf. Smith v. UnitedStates, 234 F.2d 385 (5th Cir. 1956) (submission of false affidavits of others violates omnibus clause). However, if simple perjury is accompanied by other obstructive, truth-suppressing acts, an omnibusclause offense may exist. In United States v. Alo, 439 F.2d 751 (2d Cir.), cert. denied, 404 U.S. 850 (1971),the court held that evasive testimony, such as a false denial of knowledge or memory, was included withinthe coverage of the omnibus clause of 18 U.S.C. § 1505. The court rejected the argument that the clauseproscribed only those efforts that interfered with other witnesses or documentary evidence. Id. at 754. This reasoning applies as well to the omnibus clause of 18 U.S.C. § 1503. Griffin, 589 F.2d at 203-05(false denial of knowledge and memory before grand jury); United States v. Cohn, 452 F.2d 881, 883-84 (2dCir. 1971) (same), cert. denied, 405 U.S. 975 (1972). Suborning perjury, 18 U.S.C. § 1622, may also be an 18 U.S.C. § 1503 omnibus clause offense. SeeGriffin, 589 F.2d at 203 (construing United States v. Partin, 552 F.2d 621, 630-31 (5th Cir.), cert. denied,434 U.S. 903 (1977); Catrino v. United States, 176 F.2d 884, 886-87 (9th Cir. 1949). While section 1622requires proof that perjury was in fact committed, see, e.g., United States v. Brumley, 560 F.2d 1268, 1278n.5 (5th Cir. 1977), the omnibus clause of section 1503 does not and thus may be used to prosecute attemptsto suborn perjury. See Catrino, 176 F.2d at 886-87.
26 U.S.C. § 7212--interference with or endeavors to interfere with the due administration of the InternalRevenue laws (overlap with 18 U.S.C. § 1505).
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