MEMO

May 10, 2023

The Sarbanes–Oxley obstruction of justice statute, 18 U.S.C can be expanded and specifically, charges can be brought under it where the “other object” provision could be extended to include a firearm in the 10th federal district court since there is no express limit to its expansion.

18 U.S. Code § 1512 – Tampering with a witness, victim, or an informant, states in part that

“ (c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

In United States V. Johnson, § 1512(c)(1) was expanded to cover garden variety drug offenses. In this case, Lisa Lamb was charged with obstructing justice in violation of § 1512(c)(1) by destroying cocaine alleged to belong to her then boyfriend, Scott Lee Johnson when the police were executing a search warrant on Scott Lee Johnson’s premises. As read per § 1512(c)(1), Lisa Lamb’s actions were intended to impair the cocaine’s availability at an official proceeding. In United States v. Matthews, the accused was charged with concealing a firearm, while in United States v. Ortiz, and United States v. Green, the accused were charged with concealing an automobile and concealing the victim’s dead body respectively.[1]

Although the Section can be expanded and no limitations have been expressly provided for such expansion, it is important to note that there are critics to such expansion viz; the intention of the Statute is to only cover fraud as highlighted in its history and Preamble.

The Sarbanes-Oxley Act of 2002, signed into law on July 30,2002 by Former President George W. Bush, was enacted in the wake of corporate fraud scandals from various entities. Some of these scandals include the Enron, WorldCom, Tyco International, Global Crossing, and Adelphia scandals, the most notable being the Enron scandal. In October 2001, the Enron Scandal broke when it was revealed that America’s seventh largest corporation was implicated in corporate malfeasance and accounting fraud. The Enron energy company was embroiled in a scandal that included political ramifications due to the company’s close ties to the White House, ENRON’s deregulation, which allowed the company to operate largely free of US government scrutiny, misrepresentation in earnings reports, a phony “energy crisis,” and embezzlement by ENRON executives. The Enron controversy finally led to the company’s bankruptcy, as well as the breakup of the auditing firm Arthur Andersen. ENRON shareholders lost $74 billion, while its employees lost their jobs and billions in pension benefits. [2]

Following the crisis, a slew of new laws and legislation aimed at improving the accuracy of financial reporting for publicly traded corporations was enacted. The Sarbanes-Oxley Act of 2002, the most important of these laws, set hefty penalties for destroying, changing, or fabricating financial documents. The statute also made it illegal for auditing firms to perform concurrent consulting work for the same customers. [3] 

The Statute’s preamble expresses that the purpose of the Statute is to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.[4]

The main reason why the Section can be expanded is because the wordings are vague and render themselves to manipulation. Such words include “corruptly”, “object”, and “official proceeding”. Reading the Statute as a whole however, the intention of the Statute comes out as to limit fraud.

Critics to the expansion state that the definition of “object” should be limited to items similar to records and documents which precede the word “object” in the Section. Moreover, the term “official proceeding” should go beyond mere investigations and “corruptly” should be clearly defined and if the Sarbanes-Oxley Act of 2002, is expanded to include other crimes apart from fraud, there will be discrepancies in sentencing and other punishments where a similar crime may be punished or sentenced under different Statutes leading to different sentencing or punishments which is prejudicial to the rights of an accused person. e.g. drug offences covered under § 841 vs under § 1512(c)(1). Also, expanding the Statute has been termed as improper encouraging judicial and executive legislating and rendering the Statute void for vagueness.[5]

The Sarbanes–Oxley obstruction of justice statute, 18 U.S.C can be expanded and specifically, charges can be brought under it where the “other object” provision could be extended to include a firearm in the 10th federal district court since there is no express limit to its expansion.

It is however important to note that there is no “perfect” law and if all laws were to be dissected, there would be limitless interpretation of the said laws. It is therefore important to stick to the intention of the law makers with regard to the Statute. Further, please note that if the foundation is wanting, nothing can stand. In this case, if the provision leading to the conviction of the subject persons herein is wanting, they may easily get that decision overturned.


[1]Obstruction of Justice: Unwarranted Expansion of 18 U.S.C. § 1512(c)(1) by Sarah O’Rourke Schrup

[2] https://www.american-historama.org/1990-present-modern-era/enron-scandal.htm

[3] https://www.britannica.com/event/Enron-scandal/Downfall-and-bankruptcy

[4] Obstruction of Justice: Unwarranted Expansion of 18 U.S.C. § 1512(c)(1) by Sarah O’Rourke Schrup

[5] Obstruction of Justice: Unwarranted Expansion of 18 U.S.C. § 1512(c)(1) by Sarah O’Rourke Schrup

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