persuasion to cause a person to “be absent from an official proceeding”) (emphasis added); 18 U.S.C. § 1512(b)(1) (corrupt persuasion to “prevent the testimony of any person”) (emphasis added); 18 U.S.C. § 1512(b)(2)(C) (corrupt persuasion to “evade legal process summoning that person to appear as a witness”) (emphasis added). Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 6 of 10 Page ID #:6382 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 For example, a defendant who used corrupt persuasion to cause a witness to be out of town with intent to keep the witness from being served with a grand jury subpoena and ultimately to prevent the witness’s grand jury testimony could be charged with using corrupt persuasion: (1) to cause a witness to “be absent” in violation of 18 U.S.C. § 1512(b)(2)(D); (2) to prevent the testimony of a witness in violation of 18 U.S.C. § 1512(b)(1); and/or (3) to cause a witness to “evade process” in violation of 18 U.S.C. § 1512(b)(2)(C). In the context of the criminal laws, such overlap is commonplace and does not render a statute “superfluous.”

C10-268Z, 2011 WL 1770935, *7 (W.D. Wash. May 9. 2011) (“[T]he prohibition on evidence tampering found in 18 U.S.C. § 1512(c) applies only in an ‘official proceeding,’ which does not include state court proceedings.”).

In order to obtain a conviction on Count II, the government must also prove that Ms. Stevens believed her actions were wrongful. The same “evil intent” required by 18 U.S.C. § 1512 is also required by § 1519. See Docket No. 132 (Mem.

80 See id. 81 See 18 U.S.C. § 1512(b)(3). 82 See Joint Statement p. 14.

No. SA CR 06-224-AG, 2008 WL 1970199, at *2 (C.D. Cal. May 2, 2008); see also United States v. Linder, No. 12 CR 22-1, 2012 WL 3264924, at *2-3 (N.D. Ill. Aug. 9, 2012) (granting motion for a bill of particulars to identify the “specific acts that [the defendant] allegedly committed which constituted [ ] corrupt persuasion” under 18 U.S.C. § 1512(b)(3)). As for materiality, the Ninth Circuit recently reaffirmed that it is an essential element of an obstruction offense.

Specifically, Defendants erroneously rely upon United States v. Tison, 780 F. 2d 1569 (11th Cir. 1986) for support of their position that threats of litigation equate to witness tampering. In Tison, the 11th Circuit evaluated questions relating entirely to 18 U.S.C. 1514(b)(1) which provides: A United States district court, upon motion of the attorney for the Government, shall issue a protective order prohibiting harassment of a victim or witness in a Federal criminal case if the court, after a hearing, finds by a preponderance of the evidence that harassment of an identified victim or witness in a Federal criminal case exists... (emphasis added) Case 8:14-cv-02096-VMC-EAJ Document 30 Filed 10/03/14 Page 3 of 8 PageID 610 ACTIVE 27637143v1 10/03/2014 While the Tison court mentions 18 U.S.C. § 1512, it does so only in reference to Congress’ legislative intent in drafting 18 U.S.C. § 1514. The Court specifically stated: The legislative history is clear.

The Government’s Charge of Obstruction of Justice Under 18 U.S.C. § 1512 Fails As A Matter of Law. The Government’s charge that Mr. Binday violated 18 U.S.C. § 1512(c)(2) (Indictment ¶¶ 44-45) by instructing “CC-2” to, in turn, instruct “CC-2’s” clients to give allegedly false information to an “investigator” (Indictment ¶ 33) fails as a matter of law because the Government has not alleged, as it must, that Mr. Binday knew that his actions were likely to affect an official proceeding or even that the investigator in question was an FBI agent. Case 1:12-cr-00152-CM Document 30 Filed 10/01/12 Page 17 of 21 - 14 - Section 1512(c)(2) provides: “(c) Whoever corruptly-- (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.”

31 As a preliminary matter, in light of the failure of the Seizure Affidavit to establish probable cause that a crime was committed, see above § I.B, the seizure of the Accounts, which was based upon the infirm Seizure Affidavit, should be lifted. In any event, given that the money laundering count in this case must be dismissed for the reasons discussed above, the sole 29 Notice #1 also references the alleged obstruction under 18 U.S.C. § 1512. The Indictment does not appear to assert that Defendants received any financial proceeds from the alleged obstruction itself, but rather that the obstruction was simply ancillary to the conduct charged in the other counts of the Indictment.

The government failed to prove Count 11 (witness tampering as to Jian Liu) as to Mr. Liew. The government failed entirely to prove two essential elements of the crime of witness tampering under 18 U.S.C. § 1512(b)(1): (1) that Mr. Liew knowingly intimidated, threatened, or corruptly persuaded Jian Liu; and (2) that Mr. Liew acted with intent to influence, delay, or prevent Mr. Liu’s testimony in an official proceeding. To “knowingly” “corruptly persuade” means to act with a wrongful, immoral or evil purpose to convince or induce another person to engage in certain conduct.

Corrupt Intent Is Required for the Document Destruction Charges Both document-destruction charges require proof that the defendant acted “corruptly,” and one of them requires such corruption to be “knowing.” See 18 U.S.C. § 1512(b)(2)(B) (“knowingly ... corruptly”), (c)(2) (“corruptly”). This is a demanding mens rea standard, which must be strictly construed “out of deference to the prerogatives of Congress and out of concern [for the need to provide] a fair warning.”