The opinion of the court was delivered by: PRATT
GEORGE C. PRATT, District Judge.
At the close of the evidence in this case, defendant moved to dismiss Count 9 of the indictment. After due deliberation, the Court granted the motion for the reasons which appear below. Because the question presented is a novel one, however, the Court assured the attorneys that a formal decision on the question would be forthcoming. This is that decision.
Counts 7 through 9 of this indictment are interrelated. They charge that the defendant "willfully endeavored by means of misrepresentation, to obstruct, delay and prevent the communication [to a United States Postal Inspector] of information" relating to a criminal violation. The three separate counts are related to three individuals to be referred to herein as witnesses # 7, # 8 and # 9 respectively.
The evidence showed that defendant had been charged with a mail violation and that he had consented to a temporary restraining order putting a stop on his mail deliveries. On the same day that he consented in open court to the temporary restraining order, he met with the postal inspector and an Assistant United States Attorney. At that meeting, it developed that there was a question as to whether a certain letter had been enclosed along with invoices which the defendant had sent to various business concerns.
The view asserted by the government representative was that if no such letter was enclosed, then the invoices, on their face billings for listings in a commercial directory, would be fraudulent because they implied that the recipients had previously ordered the listings when, in fact, they had not. On the other hand, if the explanatory letter had actually been included with the mailings, then the inference of fraud would be negated and there very likely would have been no criminal prosecution. Whether or not defendant was to be prosecuted seemed to turn, therefore, on whether the explanatory letters had been included with the invoices in the mailings.
When asked if anyone could corroborate defendant's claim that the letters were included with the mailings, defendant identified witnesses # 7, # 8 and # 9, indicating that all four of them had sat around his kitchen table on a December evening and had "stuffed" the envelopes, including therein the letters.
The U.S. Attorney then informed the defendant, in the presence of his counsel, that his story would be checked with these three witnesses, and defendant was advised not to speak to the three witnesses about the matter except to the extent of indicating that they might be contacted by the postal inspector.
Witnesses # 7 and # 8, formerly female acquaintances of the defendant, both testified at the trial that they had been contacted by the defendant who told them, in substance, that someone would try to get in touch with them. Defendant also requested witnesses # 7 and # 8 to tell the person who contacted them that they had stuffed the envelopes with him and that they had included three items in each envelope: the invoice, a return envelope, and the crucial letter. Defendant did not indicate to witnesses # 7 and # 8 why the requested story was important, but simply indicated that it had something to do with business.
Both of these witnesses told defendant that they would not lie for him, and in fact, when they were contacted by the postal inspector, they not only denied any knowledge of the mailing, but also told him of defendant's request that they tell a false story.
These facts, if believed by the jury, clearly fell within 18 U.S.C. § 1510, entitled "Obstruction of Criminal Investigations", which provides that anyone who "willfully endeavors by means of * * * misrepresentation * * * to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator" shall be guilty of a crime.
Clearly, the defendant here willfully endeavored to delay or prevent the communication of information by witnesses # 7 and # 8 to the postal inspector. His means was a misrepresentation of the significance and importance of the information relating to the stuffing of the envelopes. The failure of his endeavor was immaterial. United States v. Carzoli, 447 F.2d 774 (CA7 1971). Consequently, defendant's motions to dismiss Counts 7 and 8 were denied.
Witness # 9, however, presented a different problem. That young lady was the girlfriend of the defendant and had been living with him for at least a year at the time of the trial. She contradicted the stories of witnesses # 7 and # 8 and testified to precisely the same story that defendant had requested witnesses # 7 and # 8 to tell the investigator. Witness # 9 denied that the defendant had made any attempt to influence her testimony; she insisted that she was simply relating the events as they happened.
With respect to Count 9, therefore, the question was whether there was evidence from which the jury could infer that the defendant had endeavored by misrepresentation to delay or prevent witness # 9 ...