United States: Defending the Criminal Lawyer Accused of Obstruction of Justice – Kloess Decided by 11th Circuit

Reprinted by permission of Andrews Publications, ©2001. www.andrewsonline.com. From the White-Collar Crime Reporter Volume 15, Number 6, July 2001: Commentary Supplement

This article is an update to Stephen J. Bronis’ commentary, "Defending the Criminal Lawyer Accused of Obstruction of Justice," that appeared in Volume 15, Number 3, April 2001 of the White-Collar Crime Reporter.

Chapter 73 of the U.S. Code contains a number of statutes prohibiting conduct that obstructs the due administration of justice. With increasing frequency federal prosecutors are using one or more of the obstruction-of-justice statutes to target attorneys engaged in performing traditional legal services.

The focus of the previous commentary was upon the "safe harbor" provision of 18 U.S.C. § 1515. Section 1515(c) declares that Chapter 73 "does not prohibit or punish the providing of lawful bona fide, legal representation services in connection with or anticipation of an official proceeding."

The commentary analyzed the importance of the opinion by Chief U.S. District Judge W. Harold Albritton of the Middle District of Alabama dismissing an obstruction-of-justice indictment against a lawyer in United States v. Kloess, 97 F. Supp. 2d 1084 (M.D. Ala., 2000). In this case of first impression, the district court dismissed the indictment against attorney Branch D. Kloess because the government had failed to plead as an element of the offense the negation of the safe-harbor provision of 18 U.S.C. § 1515(c). Judge Albritton held that this subsection was an element of the offense, as opposed to an affirmative defense. Of even greater practical significance, the court also held that the government would be required to bear the burden of establishing that this exception did not apply at trial.

The commentary concluded with the hope that the U.S. Court of Appeals for the 11th Circuit would affirm the district court's decision in Kloess.

On May 18, 2001, the 11th Circuit decided United States v. Kloess, No. 00-13080 (11th Cir., May 18, 2001).

As noted by the court, the relevant facts upon which Kloess was indicted stemmed from his representation of Gene Easterling. Kloess originally represented Easterling in a federal criminal case wherein Easterling received a sentence of probation. While on probation Easterling was stopped for a traffic infraction and had a firearm in his possession. Such conduct was a violation of Easterling's federal probation. Easterling provided a false name to the police and was charged in state court under that phony name. When Kloess represented Easterling in the state court proceeding he submitted pleadings and wrote a letter to the state court judge in which he referred to his client by his false name. The indictment further alleged Kloess knew the true identity of his client and knowingly misled the court in order to conceal Easterling's probation violation. Kloess was prosecuted under 18 U.S.C. § 1512(b)(3) for knowingly engaging in misleading conduct with intent to hinder, delay or prevent the communication to a federal judge of information relating to the commission of a federal offense or a violation of conditions of probation.

The 11th Circuit first reviewed the district court's holding that the safe-harbor language in Section 1515(c) was an essential element of the offense, which the government must negate in its pleading, and that the government's failure to do so rendered the indictment insufficient on its face. The court undertook a three-part inquiry considering the language of the statute, its legislative history and whether the government or the defendant was better equipped to prove facts that would allow them to take advantage of a statutory exception.

Recognizing that this is "an issue of first impression in this or any other circuit," the court concluded, "Section 1515(c) is properly characterized as an affirmative defense to rather than an element of the crime…."¹

The court commenced the most interesting portion if its opinion by disagreeing with the assumption of the parties that resolution of the burden of pleading also resolved the issue of the burden of proof. The court determined that Section 1515(c)'s "safe harbor" provides a form of affirmative defense, which tends to negate an element of the crime charged. Since the hallmark of the offense of obstruction of justice is that the accused act with specific corrupt intent, "Section 1515(c) provides a complete defense because one who is performing bona fide legal representation does not have an improper purpose." Therefore, since a lawyer who properly invokes the protection of Section 1515(c) raises an affirmative defense that negates the mens rea element of obstruction of justice, the lawyer is entitled to an acquittal if the prosecution does not overcome the defense.

The court observed that the defendant-lawyer has the minimal burden of going forward with sufficient evidence to establish that he is a licensed attorney who was validly retained to perform the legal services that constitute the charged conduct. That, according to the court, would be sufficient to raise an inference of innocent purpose and force the government to adduce evidence that the charged conduct did not constitute lawful, bona fide representation. By meeting this minimal burden and thereby fairly raising the Section 1515(c) defense in an obstruction-of-justice prosecution, the accused "is entitled to an acquittal unless the jury finds that the government proved beyond a reasonable doubt that the defendant's conduct did not constitute lawful, bona fide legal representation."

The Kloess decision provides a blueprint for the type of evidence the government might present to establish that the lawyer-defendant did not provide lawful, bona fide legal representation. Citing United States v. Kelly, 888 F.2d 732 (11th Cir., 1989), and United States v. Kellington, 217 F.3d 1084 (9th Cir., 2000), the court emphasized the relevance of expert testimony regarding the ethical obligations and professional responsibilities of lawyers to establish intent and state of mind. The court also noted that the defendant is entitled to rebut the government's evidence by using such testimony for exculpatory purposes. Notwithstanding the 11th Circuit's holding that Section 1515(c) is not an element but an affirmative defense, the court's decision does not rob 1515(c) of its practical significance. Although the government still has the power to indict defense attorneys for obstruction of justice when they perform traditional legal services, Kloess sends a clear signal that the prosecution will bear the ultimate burden of proving that the conduct at issue falls outside of lawful, bona fide legal representation.

1. Subsequent to the district court's decision in Kloess, U.S. District Court Judge Shelby Highsmith issued an opinion in United States v. Ferguson, No. 99-116-CR (S.D. Fla., July 7, 2000). In Ferguson, the court was called upon to decide whether the "safe harbor" provision in the money-laundering statute preserving a person's right to Sixth Amendment representation is an element of the offense that must be negated by the government in an indictment against a lawyer. See 18 U.S.C. § 1957(f)(1). Judge Highsmith concluded that the money-laundering "safe harbor" was an affirmative defense and therefore not an element of the offense. The 11th Circuit's opinion in Kloess makes no reference to Ferguson.

Reprinted by permission of Andrews Publications, © 2001 www.andrewsonline.com.