The domestic violence case against Carolina Panther Greg Hardy was dismissed this week. According to the Charlotte Observer, a principal reason was that the alleged victim, Hardy’s ex-girlfriend, refused to cooperate and avoided service of a subpoena. Prosecutors also told the judge that the alleged victim had reached a civil settlement with Hardy. To be clear, no one has said that the settlement agreement required the alleged victim not to cooperate. But could the agreement contain such a provision? Continue reading
Tag Archives: obstruction of justice
Cyclist Lance Armstrong has recently confessed to using performance enhancing drugs during each of his seven Tour de France victories. Public discussion has focused on whether his apology, during an interview with Oprah Winfrey, was genuine or not. I want to consider whether his conduct was criminal. (By “conduct,” I mean the doping and related activity, not the interview!)
There’s a North Carolina connection. This article observes that at Beech Mountain, near Boone, you can ride “the route Lance Armstrong used to train for his final Tour De France.” And in one of his autobiographies, Armstrong recounts a North Carolina ride that renewed his faith in cycling. (I think it was his first book, It’s Not About the Bike. As an aside, I think it’s a red flag when a person writes more than one autobiography.)
The full story of Armstrong’s systematic doping and his campaign to cover it up is told in this report from the United States Anti-Doping Agency, USADA. Briefly, the agency concludes that Armstrong masterminded “a massive team doping scheme, more extensive than any previously revealed in professional sports history” and engaged in a “fraudulent course of conduct that extended over a decade and leave no doubt that Mr. Armstrong’s career . . . was fueled from start to finish by doping.”
Obviously, Armstong and his foundation have also done a great deal of good, and the purpose of this post isn’t to assess Armstrong’s legacy. My personal view is that the doping and the lying are pretty much par for the course in professional sports, but that Armstrong’s willingness to threaten, sue, slander, and destroy the livelihoods of those who told the truth about his drug use will forever disgrace him.
Anyhow, the basic criminal law issues are these:
Perjury. Armstrong has repeatedly denied, under oath, using performance enhancing drugs. Fox News reports here that “Armstrong, by the USADA’s count, has made seven statements under oath . . . that could lead to criminal charges.” The facts seem to be quite clear-cut, but Armstrong may have some defenses unrelated to factual guilt, as I discuss below.
Obstruction of Justice. In addition to lying about his doping, Armstrong attempted to prevent others from telling the truth about his conduct and the conduct of others. He reportedly told one cyclist who testified in a doping case, “[y]ou made a mistake when you testified . . . I can destroy you,” told another witness that he would make his life a “living . . . hell,” and successfully used his stature within cycling to have another witness fired from his job. This type of conduct would support charges of obstruction of justice or witness intimidation.
Fraud. Armstrong received sponsorship money, race appearance fees, and prize money, all based in part on his representations that he was clean. He is already facing multiple civil suits alleging fraud, and criminal fraud charges, state or federal, may also be possibilities.
Controlled substance charges. Among the drugs Armstrong admitted using as part of his doping regimen was testosterone. Testosterone is a Schedule III controlled substance. Furthermore, it appears that Armstrong provided drugs to other riders on his team and/or pressured them to use drugs, meaning that he may be guilty of drug distribution and conspiracy, not merely simple possession.
Possible defenses or bars to prosecution. Some commentators that have considered the possibility of criminal charges against Armstrong have concluded that the statute of limitations is likely to bar prosecution. (For example, this Sports Illustrated article suggests that the statute of limitations may preclude any perjury or drug charges.) But those articles have generally focused on federal law, which has defined limitations periods for almost all criminal offenses. State laws vary. As readers of this blog know, North Carolina has no statute of limitations for felonies, and other states may also have long or no limitations periods. Given the many jurisdictions across which Armstrong’s conduct took place, including some foreign countries, it strikes me as likely that there are jurisdictions where prosecution remains possible. Furthermore, while it is true that the federal government not long ago publicly declined to prosecute Armstrong, that doesn’t pose a barrier to a new investigation. Jeopardy never attached, the government never entered into a non-prosecution agreement, and the available evidence now is very different. And of course, appropriate state or local authorities may also investigate.
To sum up, Armstrong’s doping-related conduct likely violated multiple criminal laws. I disagree with the comment by prominent defense lawyer Mark Geragos that “I am sure Lance’s lawyer has vetted [his confession to Oprah] and doesn’t see any criminal exposure.” It seems to me more likely that his legal team sees considerable potential criminal exposure, but simply concluded that confessing to Oprah wouldn’t make the danger any greater. Whether prosecuting Armstrong is a good use of resources is a separate question, but the legal basis for possible prosecution appears quite sound.
If I were to compile guidance for law enforcement officers and judges on “what not to do” in an impaired driving case, I’d be sure to include excerpts from two cases decided by the court of appeals this week: State v. Petty and State v. Taylor.
Let’s start with Taylor, reserving discussion of Petty for a later post. The defendant in Taylor, then the chief deputy of the Lincoln County Sheriff’s Department, interfered with the criminal processing of a doctor arrested for impaired driving. The doctor, whose medical practice employed the defendant’s girlfriend, was stopped after he drove past a checkpoint. The doctor smelled of alcohol, admitted to consuming several alcohol beverages, showed signs of impairment, and refused to blow into an Alco-Sensor. He was arrested for impaired driving and taken to the sheriff’s office for a chemical analysis of his breath. That chemical analysis never occurred, however. Instead, when the doctor arrived at the sheriff’s department, the defendant (who upon hearing of the doctor’s arrest left his home for the sheriff’s department in the early morning hours) took the doctor into his office. The two spent twenty minutes alone before the defendant emerged and requested that the arresting officer bring to him an Alco-Sensor (a device the defendant was not trained to use). After obtaining the Alco-Sensor, the defendant returned to his office, where he and the doctor remained for another twenty minutes. The defendant then informed the arresting officer that the doctor had blown a 0.07 on an Alco-Sensor and that he had been released.
The defendant was charged by indictment with felonious obstruction of justice and convicted by the jury of the lesser-included offense of misdemeanor obstruction of justice. He filed a motion for appropriate relief (MAR), which was denied by the trial court. Defendant appealed his conviction and the denial of the MAR. The court of appeals found no error at trial and affirmed the denial of the MAR.
Most of the court’s analysis is dedicated to its rejection of the defendant’s contention that enactment of G.S. 14-233, (which defines the offense of resisting, delaying or obstructing an officer, a Class 2 misdemeanor), eviscerated the common law offense of obstruction of justice along with its rejection of defendant’s contention that the statute of limitations barred his conviction of the lesser included misdemeanor offense.
What’s interesting in terms of impaired driving law is the court’s rejection of defendant’s argument that the court by failing to instruct the jury that “‘it should find the defendant not guilty unless it was convinced beyond a reasonable double that [the arresting officer] had sufficient legal justification to process [the doctor] for impaired driving,’” since “‘[t]here is nothing illegal about obstructing the processing of an illegal arrest.’” (Slip op. at 22.) (The defendant did not request this instruction at trial.)
Even assuming, for purposes of discussion, that the defendant had the legal right to intervene to prevent further processing of the doctor based on his conclusion that the arresting officer lacked probable cause, the court held there was insufficient evidence to permit a jury determination that probable cause was lacking. While the evidence pointed to by the defendant, such as the 0.07 Alco-Sensor result and testimony from the doctor that the arresting officer told him that he “did fine” on a field sobriety test and that defendant administered additional field sobriety tests, would have been admissible at the doctor’s trial (if there had been one), it did not demonstrate that the arresting officer lacked probable cause. The court deemed significant the time lapse between the arresting officer’s observations of the doctor at the checkpoint and the defendant’s observations in his office. Incidentally, the time delay doesn’t strike me as overly significant, given that the defendant took the doctor into his office immediately upon the doctor’s arrival and spent only forty minutes there. After all, the arresting officer planned to administer a chemical analysis of the defendant’s breath, which would have required at least a fifteen minute delay to satisfy the observation period requirements.
Furthermore, the court found no evidence that defendant had any right or obligation to determine whether a subordinate had arrested a suspect without probable cause and to take corrective action, characterizing the record has “devoid of any evidence testing to show that Defendant had the responsibility for ‘un-arresting’ the doctor.” Thus, the court held that the defendant failed to demonstrate the record evidence would have supported delivery of this instruction, even if it was a correct statement of the law, an issue the court made clear it was not deciding.
I’ve heard the term “un-arrest” used before though I’m not sure the act described can actually be carried out (at least by an ordinary Muggle). The term is used to distinguish an arrested person’s release by an officer before an initial appearance from the release of such a person after an initial appearance (based either on a finding of no probable cause or upon the satisfaction of conditions of release). Are officers ever permitted to carry out such pre-initial appearance releases or, in other words, to “un-arrest” people? G.S. 15A-501(2) provides that a law enforcement officer must take a person who is arrested “before a judicial official without unnecessary delay.” A literal reading of this provision would require that when a law enforcement officer arrests someone and later determines that probable cause is lacking that he nevertheless proceed to take the person before a magistrate. My colleague and Fourth Amendment guru Bob Farb has opined that, notwithstanding this statutory requirement, “federal constitutional law appears to require that officers must release an arrestee when probable cause clearly no longer exists.” Robert L. Farb, Arrest, Search, and Investigation in North Carolina 45 & n. 365 (3rd ed. 2003) (citing federal cases). Thus, Bob advises that in such a situation, officers “release the arrestee in a safe place.” Id.
In any event, the requirement that a defendant be released when it becomes clear that probable cause no longer exists was of no moment in Taylor’s case, where the record was replete with evidence that supported the arresting officer’s determination.
The “what not to do” lesson from Taylor is rather obvious: Don’t use your official position to hinder the arrest and processing of a defendant for impaired driving when the arrest is supported by probable cause.
As the current edition of North Carolina Crimes explains, “[o]bstructing justice consists of any act that prevents, obstructs, impedes, or hinders public or legal justice, and it may take many forms.” Jessica Smith, North Carolina Crimes 451 (6th ed. 2007). The breadth of this common-law offense was recently highlighted by the court of appeals in State v. Wright.
In a nutshell, the defendant was a state representative who filed inaccurate campaign finance reports, failing to disclose approximately $150,000 in contributions received and $77,000 in transfers from his campaign account to his personal account. He was charged with, and convicted of, felony obstruction of justice. He appealed, arguing that “because he filed all of the campaign finance disclosure reports before any criminal investigation or legal proceedings had begun, there could be no obstruction of justice.”
The court of appeals rejected this argument. It relied in part on the civil case of Henry v. Deen, 310 N.C. 75 (1984), in which the court stated that tampering with medical records in an attempt to avoid a medical malpractice suit would constitute obstruction of justice. The court of appeals reasoned that Wright “deliberately hindered the ability of the [State Board of Elections] and the public to investigate and uncover . . . whether defendant was complying with campaign finance laws. . . . Further, his false reports concealed illegal campaign activity from public exposure and possible investigation.” In other words, the court adopted a broad interpretation of obstruction of justice that includes activity designed to prevent an investigation from beginning as well as activity designed to frustrate or evade an existing investigation.
The Wright court didn’t explore the outer limits of this principle, and I wonder what they are. For example, if a defendant runs a Ponzi investment scheme, sending bogus account statements to his victims, has he obstructed justice because the statements were designed to prevent the victims from complaining or investigating? If a bank robber removes the license plates from his car before a robbery, to make it more difficult for witnesses to identify his car, has he obstructed justice? When a murderer throws the murder weapon in a river to make it impossible for police to recover, has he “blocked an investigation”? How about a drug suspect who throws away his drugs while running from police? Cf. United States v. Sparks, 949 F.2d 1023 (8th Cir. 1991) (affirming application of sentencing enhancement for obstruction of justice where the defendant threw away his drugs and warned his colleagues of the presence of police).
Perhaps some lines can be drawn, but it is also possible that obstruction of justice applies in many situations in which it is not typically charged. (AOC statistics for a recent year reveal that obstruction of justice was charged fewer than 200 times across the state.)