United States v. Sullivan

Brief of Amici Curiae National Association of Criminal Defense Lawyers and Due Process Institute in Support of the Defendant Appellant

Brief filed: 10/17/2023


United States v. Sullivan

9th Circuit Court of Appeals; Case No. 23-927

Prior Decision

Appeal from the United States District Court for the Northern District of California No. 3:20-cr-00337-WHO


For more than a century, courts have consistently recognized that offenses involving the obstruction of justice must include a close connection between a defendant’s allegedly obstructive conduct and an underlying governmental proceeding. Accordingly, the Supreme Court has repeatedly held that modern federal obstruction statutes include a “nexus” requirement. That is, the government must show that the defendant’s obstructive act had “a relationship in time, causation, or logic” with an official proceeding. United States v. Aguilar, 515 U.S. 593, 599 (1995). The Supreme Court, this Court, and other circuit courts have repeatedly applied that principle across a broad variety of obstruction offenses. Title 18 Section 1505 should not be an exception. That statute imposes criminal penalties on anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States . . . .” 18 U.S.C. § 1505. That language mirrors, nearly verbatim, language that the Supreme Court in Aguilar held includes a nexus requirement. The Supreme Court’s holding in Aguilar and its progeny is sufficient on its own to compel the conclusion that § 1505 incorporates a nexus element. Even if Aguilar were not enough, fundamental Due Process principles would require a nexus element to cabin the otherwise broad, vaguely worded language of § 1505. The Supreme Court has held that federal obstruction statutes do not criminalize conduct just because of the potential for a downstream effect of impeding a federal proceeding. With no nexus requirement, § 1505 would do just that. Moreover, well-established precedent holds that “a penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Without a nexus requirement, employees would be left to guess at the line between carrying out their job duties in good faith and criminally impeding the work of an agency proceeding—a violation of their due process rights. This Court should hold that § 1505, like nearly every similar obstruction statute, includes a nexus requirement.


Jeffrey R. Babbin, Nathan J. Guevremont, Wiggin and Dana LLP, New Haven, CT; Anjali Dalal, Wiggin and Dana LLP, New York, NY; Gia L. Cincone, NACDL, San Francisco, CA; Due Process Institute, Washington, DC.

Explore keywords to find information

Featured Products