## Facts

- Federal authorities prepared to prosecute Felix Mitchell, an alleged Oakland narcotics-gang leader, and Leslie Brigham began cooperating while in custody on unrelated charges.
- Mitchell’s attorney contacted Brigham in jail, urged him not to cooperate, and showed him a note from Mitchell directing him not to testify or speak with federal prosecutors.
- Brigham was placed in protective custody at a motel but left, went to his sister’s home, and disclosed his location to Mitchell’s brother.
- Gary Lester and others came to the sister’s home; after a telephone discussion with Mitchell, Brigham was told to leave town.
- Brigham and Leroy “Obie” McGill stayed in San Diego for several weeks with lodging paid by associates of Mitchell and received funds connected to Lester’s associates, during which time Brigham remained unavailable as a witness.
- The government alleged Lester and McGill agreed to conceal Brigham to prevent his testimony and impede a federal criminal investigation.

## Issues

1. Whether the Victim and Witness Protection Act of 1982 and 18 U.S.C. § 1512 removed noncoercive witness tampering from the omnibus clause of 18 U.S.C. § 1503.
2. Whether the evidence was sufficient to support the jury’s guilty verdicts such that the district court erred by entering post-verdict judgments of acquittal under Fed. R. Crim. P. 29(c) on Lester’s substantive obstruction counts (18 U.S.C. §§ 1503, 1510) and on McGill’s conspiracy count (18 U.S.C. § 371).
3. Whether Lester’s conspiracy conviction under 18 U.S.C. § 371 was supported by the evidence and consistent with the obstruction statutes as interpreted.

## Decision

- The court affirmed Lester’s conviction for conspiracy under 18 U.S.C. § 371.
- The court reversed the district court’s Rule 29(c) judgments of acquittal for Lester on 18 U.S.C. §§ 1503 and 1510 and for McGill on 18 U.S.C. § 371.
- The court reinstated the jury’s guilty verdicts on the counts set aside by the district court.
- The court held that § 1503’s omnibus clause continues to reach noncoercive conduct intended to obstruct the due administration of justice, notwithstanding enactment of § 1512.
- The court held the evidence permitted a rational jury to find an agreement and overt acts to conceal Brigham and thereby obstruct the pending judicial proceeding and the federal investigation.

## Legal Principles

- The omnibus clause of 18 U.S.C. § 1503 applies to corrupt endeavors to obstruct the due administration of justice, including noncoercive efforts to influence, conceal, or keep a witness from appearing.
- Enactment of the Victim and Witness Protection Act and 18 U.S.C. § 1512 did not impliedly repeal or categorically displace § 1503’s omnibus clause as to witness-related obstruction.
- On review of post-verdict Rule 29(c) judgments, the appellate court asks whether, viewing the evidence in the light most favorable to the government, any rational jury could find each element beyond a reasonable doubt.
- A conspiracy under 18 U.S.C. § 371 may be proved by coordinated actions and inferences of agreement and shared objective; concealing and relocating a cooperating witness can constitute overt acts in furtherance of obstructing justice and obstructing a criminal investigation.
- Prosecutorial “community conscience” themes are improper only when designed to inflame the jury; rhetorical flourish not causing prejudice to substantial rights does not warrant relief.

## Conclusion

The Ninth Circuit held that § 1503’s omnibus clause remains a broad obstruction statute that covers noncoercive schemes to keep a witness unavailable, despite the VWPA’s enactment of specialized witness provisions, and it reinstated jury verdicts after finding the evidence sufficient to support conspiracy and substantive obstruction convictions.


United States v. Lester, 749 F.2d 1288 (9th Cir. 1984)