CA8: Moving records to impair an expected search warrant violates 18 U.S.C. § 1512(c)(1)

Where a suspect in custody was told by his lawyer that a search of his office was imminent, the suspect’s call to his wife to move records was an offense under 18 U.S.C. § 1512(c)(1). United States v. Mann, 11-1504 (8th Cir. July 17, 2012):

Mann also was convicted of aiding and abetting tampering with evidence in violation of 18 U.S.C. § 1512(c)(1) by removing from Dr. Mann’s medical office a special power of attorney, a general power of attorney, pre-signed blank checks, and other financial documents related to Sandip Mann, her brother-in-law, before a search warrant was executed there. Section 1512(c)(1) prohibits, inter alia, corruptly “conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”

An “official proceeding” includes a proceeding before a federal judge, court, or grand jury, 18 U.S.C. § 1515(a)(1)(A), and “an official proceeding need not be pending or about to be instituted at the time of the offense,” 18 U.S.C. § 1512(f)(1). Mann contends first that there was no “official proceeding” within the meaning of the statute because there was no official proceeding focusing on Sandip Mann specifically. She also argues that there is insufficient evidence that her actions were related to any official proceeding or that she corruptly concealed the documents in question.

Mann’s first argument is flawed. Section 1512(f)(1) specifically provides that no “official proceeding need … be pending or about to be instituted at the time of the offense.” Thus, § 1512(c)(1) requires only that Mann have acted with the intent to impair the documents’ availability to an official proceeding. It does not require the Government to prove the existence of an official proceeding focusing on Sandip Mann. Furthermore, notwithstanding Mann’s protestations to the contrary, the Government never argued that there was an official proceeding to investigate Sandip Mann specifically but rather argued that he was a person of interest in the ongoing federal grand jury investigation into the bombing, which clearly was an official proceeding within the meaning of the statute. See 18 U.S.C. § 1512(c)(1); 18 U.S.C. § 1515(a)(1)(A).

In some jurisdictions, they’d probably indict the lawyer, too.