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UNITED STATES v. ULRICH

April 1, 1998

United States of America, Plaintiff, against Richard A. Lundwall and Robert W. Ulrich, Defendants.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Richard A. Lundwall and Robert W. Ulrich, two former officials of Texaco, Inc., are charged in a two count Superceding Indictment with conspiring to obstruct justice in violation of 18 U.S.C. § 371 and with obstruction of justice in violation of 18 U.S.C. § 1503. They move to dismiss on the ground that § 1503 does not apply to civil discovery matters. Since we conclude that § 1503 reaches the willful destruction of documents during civil litigation, defendants' motion is denied.

 The Indictment charges that defendants' conduct occurred during the pendency in this District of a civil class action employment discrimination law suit styled Roberts v. Texaco, Inc., 94 Civ. 2915 (CLB). The Roberts plaintiffs alleged that Texaco had racially discriminated against its African-American employees. During pretrial preparations for Roberts, Texaco's legal department had allegedly advised certain Texaco officials, including Ulrich, of the pendency of the lawsuit and of the need to retain documents relevant to the lawsuit. A few months later, Lundwall was deposed and was requested on the record to produce documents pertaining to Texaco's minority employees. As a result of the request made by plaintiffs' counsel in the Roberts suit, Lundwall and Ulrich, among others, were given responsibility for collecting responsive documents for production. Following the requests made during Lundwall's deposition and memorialized in a subsequent follow-up letter, Lundwall, Ulrich and others are alleged to have first withheld and then destroyed documents sought by plaintiffs' counsel and required to be produced in Roberts.

 The Indictment charges that defendants' conduct violated 18 U.S.C. § 1503, which provides, in part:

 
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly, or by threats or force or by threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct or impede, the due administration of justice, shall [be guilty of a federal crime].

 (Emphasis supplied.)

 The defendants move to dismiss on the ground that § 1503 does not apply to their conduct. Their principal contention is that the statute has never been used to prosecute individuals charged with the destruction or concealment of documents during civil discovery. See Richmark Corp. v. Timber Falling Consultants, Inc., 730 F. Supp. 1525, 1532-33 (D. Or. 1990).

 More specifically, defendants contend that two distinct lines of cases interpreting § 1503 have, in effect, limited its reach. Under the first, § 1503 reaches contumacious conduct outside the courtroom, including conduct arising in civil proceedings, but only if that conduct amounts to willful contempt of court. *fn1" Under the second, § 1503's omnibus clause (the underscored language) applies to the destruction or concealment of documents in criminal investigations. *fn2"

 Cases involving prosecutions for document destruction during civil pre-trial discovery are notably absent from the extensive body of reported § 1503 case law. Defendants contend that this absence precludes the application of § 1503 to their alleged conduct. With these objections in mind, we turn first to the text of the statute and then to the cases construing it.

 "It is axiomatic that 'the starting point in every case involving construction of a statute is the language itself.'" Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 85 L. Ed. 2d 692, 105 S. Ct. 2297, (1985)(quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975)); see also Brogan v. United States, U.S. , 118 S. Ct. 805 (1998). Generally, the text of the statute controls except in the "rare case [in which] the literal application of the statute will produce a result demonstrably at odds with the intention of its drafters." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 73 L. Ed. 2d 973, 102 S. Ct. 3245 (1982). In such cases, it is the intention of the legislators, rather than the strict language of the statute, that controls. Id. Finally, in interpreting a statute, the Court "must not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987). See also Samuels, Kramer & Co. v. Commissioner of Internal Revenue, 930 F.2d 975, 979 (2d Cir. 1991).

 Defendants' conduct as alleged in the Indictment seems to us to fall comfortably within the reach of the text of § 1503. As we have seen, the Indictment alleges that defendants, knowing that relevant documents were to be produced in ongoing civil litigation, deliberately concealed and destroyed them. In doing so, defendants are charged with having acted "corruptly" as opposed to inadvertently or with some innocent motive. See United States v. Barfield, 999 F.2d 1520, 1524 (11th Cir. 1993) ("The 'corrupt' requirement -- which may also be described as the knowing, intentional or willful requirement -- acts as a staunch barrier against prosecutorial overreaching and improper expansion of section 1503. This requirement protects those individuals who are, for example, . . . not intending to obstruct the due administration of justice"); United States v. Haas, 583 F.2d 216 (5th Cir. 1978); see also United States v. Ogle, 613 F.2d 233, 239 (10th Cir. 1979). The alleged document destruction and concealment is claimed by the government to have "influenced or impeded" or, at the very least, "attempted to influence or impede" the development of facts and claims asserted in the Roberts litigation. And defendants' conduct is alleged to have impeded the "due administration of justice":

 
The words 'due administration of justice' import a free and fair opportunity to every litigant in a pending cause in federal court to learn what he may learn (if not impeded or obstructed) concerning the material facts and to exercise his option as to introducing testimony or such facts. The violation of the law may consist in preventing a litigant from learning facts which he might otherwise ...

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