## Facts

- Barry Simmons worked as a writ server for the Philadelphia Traffic Court and supervised deputy writ servers.
- In mid-July 1977, two deputy writ servers reported to the FBI that Simmons was altering dates on scofflaw notices and mailing them after the statute of limitations had run.
- On July 28, 1977, the FBI obtained a subpoena for toll-call records from Simmons’s business and personal telephones, returnable before a regularly sitting grand jury on August 5, 1977.
- On August 4, 1977, Simmons and several employees were subpoenaed to appear before the grand jury on August 12, 1977, and to bring records relating to priority scofflaw notifications.
- After being served with a subpoena, Simmons destroyed documents referenced in the subpoena and instructed employees on what to tell investigators, including directions to withhold information from the grand jury.
- A grand jury indicted Simmons on August 12, 1977 on two counts of obstruction of justice under 18 U.S.C. § 1503: (1) destruction of documents and (2) instructing employees to withhold information.
- A jury convicted Simmons on both counts, and he appealed.

## Issues

1. Whether a grand jury investigation is “pending” for purposes of 18 U.S.C. § 1503 when subpoenas are issued to a regularly sitting grand jury upon a prosecutor’s application, even if the grand jury has not yet been informed of the subpoenas or investigation at the time of the obstructive acts.
2. Whether the evidence was sufficient to sustain convictions for obstruction based on destruction of subpoenaed documents and coaching witnesses to withhold information.

## Decision

- The Third Circuit affirmed the convictions.
- The court held that a grand jury proceeding may be “pending” under § 1503 when subpoenas are issued in furtherance of an actual grand jury investigation contemplating the presentation of evidence to that grand jury, even if the grand jury itself is not yet aware of the subpoenas.
- The court concluded the subpoenas here were issued to a regularly sitting grand jury with contemplated presentation dates and thus supported the pendency requirement.
- The court found sufficient evidence that Simmons knowingly endeavored to obstruct the grand jury’s investigation by destroying responsive documents after service and by instructing employees to withhold information.

## Legal Principles

- Obstruction under 18 U.S.C. § 1503 requires interference with the due administration of justice, which includes interference with a “pending” grand jury proceeding.
- A grand jury investigation can be “pending” when a subpoena is issued in furtherance of an actual grand jury investigation, meaning it is intended to secure a presently contemplated presentation of evidence before the grand jury.
- The pendency determination is functional and case-specific; it turns on the subpoena’s investigative purpose and its connection to a genuine grand jury inquiry, not on whether the grand jury has formal knowledge of the subpoena at the time of the obstructive conduct.
- Destruction of subpoenaed documents and corrupt efforts to influence witness testimony can satisfy the “endeavor” element of § 1503 when directed at evidence or testimony sought for a grand jury investigation.

## Conclusion

The court sustained Simmons’s § 1503 convictions, holding that subpoenas issued to obtain evidence for a contemplated presentation to a regularly sitting grand jury established a “pending” grand jury proceeding, and that destroying subpoenaed records and directing subordinates to withhold information constituted sufficient obstruction.


United States v. Simmons, 591 F.2d 206 (3d Cir. 1979)