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Pushed to define obstruction as an offense, justices look for middle ground

The high court must define what it means to obstruct justice as it considers the crimes of two men facing deportation.  

WASHINGTON (CN) — Arguments from the Biden administration to broaden the definition of obstruction of justice left the Supreme Court searching for more neutral territory on Monday. 

“The problem is the government wants to broaden … and no one is giving us a way to get between the two extremes,” Justice Clarence Thomas said of the court’s struggle to nail down a definition for obstruction of justice. 

Chief Justice John Roberts expressed similar frustration. 

“I understand the easy case and the hard case,” the Bush appointee said. “I’m trying to figure out where you would draw the line.”

The majority of justices seemed skeptical about accepting the broad definition proposed by the government. 

“It’s sort of obstruction of justice taking over the world,” Justice Elena Kagan said of the government’s position. 

The case before the justices turns on the point during an investigation when one’s actions would be considered obstruction of justice. A number of the justices deployed hypothetical scenarios to find the elusive middle ground. Justice Samuel Alito asked if someone’s actions could be considered obstruction if a grand jury had already gathered to discuss the case or if a search warrant had been served. Justice Brett Kavanaugh asked about retaliation crimes and those that would threaten judges. 

Hanging in the balance of the courts decision are two men facing deportation from the U.S. for unrelated criminal convictions. As an aggravated felony, an offense relating to obstruction of justice would trigger removal proceedings under U.S. law dating back to 1988. The statute within the Immigration and Nationality Act cited by the government has undergone two expansions for the definition of the crime. In 1996, lawmakers included an offense relating to obstruction of justice — the felonies in question in these cases. 

What is disputed is whether the timing of the crimes — if they overlapped with a pending or ongoing investigation — changes the outcome of their convictions. 

“Nothing in the term’s ordinary meaning required a temporal overlap between the defendant’s conduct and a pending investigation or proceeding,” U.S. Solicitor General Elizabeth Prelogar wrote in a brief ahead of arguments. “After all, an offender could interfere with the process of justice by preventing an investigation or proceeding from commencing in the first place. The most effective forms of obstruction of justice often work in precisely that way.” 

Fernando Cordero-Garcia, had lawful permanent resident status in the U.S. after emigrating from Mexico in 1965. He began working as a psychologist in Santa Barbara, Calif., mostly treating patients referred to him through the criminal justice system. 

In 2011, Cordero-Garcia was convicted of sexual battery without restraint and sexual exploitation by a psychotherapist. Prosecutors showed that he had been abusing his patients, many of them already vulnerable, and threatening them to keep them quiet. But it was the conduct that occurred after his arrest that brought the obstruction-related charges that could lead to Cordero-Garcia's removal.

Cordero-Garcia was convicted specifically on charges related to dissuading a witness from reporting a crime because he met with two of his victims the day after he was arrested on rape charges in 2007. Prosecutors said he tried to persuade them not to report his crimes.

At the Ninth Circuit, however, efforts to remove Cordero-Garcia hit a wall. Cordero-Garcia has urged the justices to affirm, arguing that obstruction of justice was commonly understood to require an existing legal process.

“The ordinary meaning of ‘obstruction of justice,’ federal criminal law, and state criminal law all point in one direction: at the time of Section 1101(a)(43)(S)’s enactment, the generic offense of obstruction of justice was commonly understood to require an existing legal process,” Mark Fleming, an attorney with Wilmer Cutler Pickering representing Cordero-Garcia, wrote in his brief. 

In the other case that was argued Monday, Michael Dreeben with O’Melveny & Meyers represents Jean Francois Pugin — a Mauritius native. Pugin had been a legal permanent resident in the U.S. for almost three decades when he was convicted of being an accessory after the fact to a felony in Virginia. The Department of Homeland Security said Pugin would be subject to removal for his charges in 2015. 

Pugin’s appeal to an immigration judge was denied, and the Board of Immigration Appeals also ruled against him, as did the Fourth Circuit. 

Pugin warns of the broad applications the government could use for the same obstruction of justice charges.

“The government asserts that petitioner’s state misdemeanor accessory-after-the-fact offense ‘relat[es] to obstruction of justice’ because it has as an element the intent to help another ‘elude punishment,’” Dreeben wrote in Pugin’s brief. “But the government suggests no limit to how attenuated such intent may be from any actual future proceeding or investigation that could yield punishment.” 

The Justice Department and attorneys for Cordero-Garcia and Pugin did not respond to requests for comment following oral arguments. 

Follow @KelseyReichmann
Categories / Appeals, Criminal, Government, Law

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