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Obstructing Justice Article 131b, UCMJ

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  1. Elements
    1. That the accused wrongfully did a certain act;
    2. That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending;
    3. That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and
    4. That, under the circumstances, the conduct of the accused was to the prejudice of the good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
  2. Scope Obstructing justice under Article 134 is much broader than under the United States Code. See United States v. Jones , 20 M.J. 38 (C.M.A. 1985). It proscribes efforts to interfere with the administration of military justice throughout the investigation of a crime, not simply at pending judicial proceedings. The crime can be constituted where the accused had reason to believe that criminal proceedings were or would be pending. United States v. Tedder , 24 M.J. 176 (C.M.A. 1987); United States v. Bailey , 28 M.J. 1004 (A.C.M.R. 1989); United States v. Chodkowski , 11 M.J. 605 (A.F.C.M.R. 1981), aff’d, 14 M.J. 126 (C.M.A. 1982); but cf . United States v. Kellough , 19 M.J. 871 (A.F.C.M.R. 1985) (not obstruction to “plant” evidence where no proceeding pending; offense was a disorder under Article 134). Criminal proceedings are broadly defined to include nonjudicial punishment. MCM, pt. IV, 96c. An official act, inquiry, investigation, or other criminal proceeding with a view toward possible disposition in the military justice system is required. United States v. Gray , 28 M.J. 858 (A.C.M.R. 1989). MCM 1984, pt. IV 96F is amended by Change 5 by making wrongfulness a required element.

UCMJ Article 131b: Obstructing Justice

    1. Applications
      1. Assault on witness who had testified at summary court-martial. United States v. Long , 6 C.M.R. 60 (C.M.A. 1952).
      2. Intimidating witnesses who were to testify at a summary court-martial. United States v. Rossi , 13 C.M.R. 896(A.F.B.R. 1953).
      3. Intimidating a witness who was to appear before an Article 32 investigating officer. United States v. Daminger , 31 C.M.R. 521 (A.F.B.R. 1961). But see United States v. Chodkowski, 11 M.J. 605 (A.F.C.M.R. 1981) (arguing that Daminger no longer accurately represents controlling law on obstruction issue and that such a charge does not require that charges had been preferred in the underlying case or investigation).
      4. Attempt to influence and intimidate a witness to retract a statement made during course of an Article 15 hearing. United States v. Delaney , 44 C.M.R. 367 (A.C.M.R. 1971).
      5. MP tried to conceal money which came into his possession in the course of official duty when the money was possible evidence pertaining to an alleged criminal offense by another person. United States v. Favors , 48 C.M.R. 873 (A.C.M.R. 1974).
      6. Communications among co-conspirators not embraced by the conspiracy. United States v. Williams , 29 M.J. 41 (C.M.A. 1989); see United States v. Dowlat , 28 M.J. 958 (A.F.C.M.R. 1989).
      7. Endeavoring to impede trial by soliciting a murder. United States v. Thurmond , 29 M.J. 709 (A.C.M.R. 1989).
      8. Accused’s threat to airman, which airman understood as an inducement to testify falsely if he were called as a witness at the accused’s trial, constituted offense even if accused was not on notice that airman would be a witness. United States v. Caudill , 10 M.J. 787 (A.F.C.M.R. 1981); United States v. Rosario , 19 M.J. 698 (A.C.M.R. 1984).
      9. Attempt to have witness falsely provide an alibi. United States v. Gomez , 15 M.J. 954 (A.C.M.R. 1983).
      10. Accused’s act of simultaneously soliciting false testimony from two potential witnesses constituted a single obstruction of justice. United States v. Guerro , 28 M.J. 223 (C.M.A. 1989).
      11. Asking witnesses to withdraw statements. United States v. Latimer , 30 M.J. 554 (A.C.M.R. 1990).
      12. Accused’s statement “don’t report me” did not constitute obstruction of justice. United States v. Asfeld , 30 M.J. 917 (A.C.M.R. 1990).
      13. Seeking to have minor daughter’s boyfriend influence daughter to change her testimony at a state court proceeding, in exchange for consenting to daughter’s marriage to boyfriend. United States v. Smith , 32 M.J. 567 (A.C.M.R. 1991) rev’d on other grounds 39 M.J. 448 (C.M.A. 1994) (merely requesting a soldier to contact a witness in a state proceeding, without evidence that accused also asked him to convince the witness to change her testimony, is not sufficient to sustain conviction for obstruction of justice).
      14. No obstruction of justice where accused’s conduct consisted only of calling friends and begging them not to press charges. United States v. Kirks , 34 M.J. 646 (A.C.M.R. 1992).
      15. Making false and misleading statement to investigators may constitute obstruction of justice. United States v. Arriaga , 49 M.J. 9 (1998).
      16. A senior drill instructor’s attempt to get two trainees to change their story regarding a sexual assault against one of the trainees was legally sufficient to sustain convictions for two specifications of obstruction of justice. The accused’s statement, “I’ll do anything if you don’t tell,” and its converse implication of more severe treatment if the trainee did not accede was inconsistent with the duties of a senior drill sergeant. Additionally, the accused knew his offense against the trainee had been reported and that the trainee was pursuing the matter. United States v. Barner , 56 M.J. 131 (2001).
      17. An interested party who advises, with a corrupt motive, a witness to exercise a constitutional right may obstruct the administration of justice. United States v. Reeves , 61 M.J. 108 (2005) (accused, a tech school instructor, told a trainee not to speak to investigators and to seek counsel once the accused came under suspicion for several offenses).

Falsely Accused of Military Sexual Assault: What Should I Do?

Military Sexual Assault Lawyer Tips

  1. Applies to state court proceedings. United States v. Smith , 32 M.J. 567 (A.C.M.R.1991), rev’d on other grounds , 39 M.J. 448 (C.M.A. 1994).
  2. Requisite intent not found unless accused aware that there is or possibly could be aninvestigation. United States v. Athey , 34 M.J. 44 (C.M.A. 1992).
  3. It is not necessary that the potential evidence be within the control of authorities oralready seized when destroyed by the accused in order to be considered obstruction of justice. United States v. Lennette , 41 M.J. 488 (1995).
  4. An accused can be convicted of obstruction of justice, even if the court-martialacquits him of the offense for which he was under investigation. United States v. Bailey , 52 M.J. 786 (A.F. Ct. Crim. App. 1999), aff’d, 55 M.J. 38 (C.A.A.F. 2001).
  5. Using the U.S. Code.
    1. A more restrictive, and thus generally less desirable, way to charge this offense is under Article 134(3), UCMJ, as a violation of one of the below-listed sections of the U.S. Code:
      1. 18 U.S.C. § 1503 (1982) – Obstruction of proceedings before any federal court, commissioner, magistrate, or grand jury. United States v. Aguilar , 115 S. Ct. 2357 (1995) (adopting the “nexus” requirement – that the conduct in question had the natural and probable effect of interfering with the due administration of justice).
      2. 18 U.S.C. § 1505 (1982) – Obstruction of proceedings before departments, agencies and committees.
      3. 18 U.S.C. § 1510 (1982) – Obstruction of criminal investigations. See generally United States v. Casteen , 17 M.J. 580 (A.F.C.M.R. 1983) (not intended to deal with communications between accomplices) reconsidered on other grounds , 17 MJ 800 (1983), rev’d. in part, 24 MJ 62 (C.M.A. 1987). But see United States v. Williams, 29 M.J. 41 (C.M.A. 1989) (disapproving of Casteen and stating that communications to an accomplice will be subject to obstruction charge under either Article 134(1) or 134(2)).
      4. 18 U.S.C. § 1511 (1982) – Obstruction of state or local law enforcement.
      5. See Annot., 18 A.L.R. Fed. 875 (1974).
    2. If the offense is charged under the U.S. Code, the military judge must instruct on the elements set out in the statute and the Government must prove the same. United States v. Canter , 42 C.M.R. 753 (A.C.M.R. 1970); see generally United States v. Ridgeway , 13 M.J. 742 (A.C.M.R. 1982).
    3. The MCM obviates the need for proceeding under some of these statutes as Article 134 provides the offense of “Wrongful Interference With An Adverse Administrative Proceeding.” See MCM, pt. IV, para 96a.

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