Atlanta-based Federal Court of Appeals Reverses Obstruction Conviction Because No Evidence Defendant Aware of the Proceeding He Supposedly Obstructed

May 19, 2011 by Paul Kish

Our local Federal Court of Appeals, sitting just down the street from our offices here in Atlanta, yesterday reversed a federal criminal conviction for obstruction of justice. The prosecutors contended that the defendant tried to obstruct a forfeiture matter. The Eleventh Circuit joined other courts and relied on some earlier Supreme Court cases by holding that there cannot be a conviction in this context unless there is evidence that the defendant was aware of the forfeiture proceeding he obstructed. The case is United States v. Friske.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a "repair job" and remove "three things" buried near Erickson's pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just "trying to help a friend."

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. ยง1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a "nexus" requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, "if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct."

The Eleventh Circuit then turned to the evidence in Mr. Friske's trial. They noted that he certainly acted "suspiciously" in digging around Erickson's pool shortly after getting the recorded calls. However, there was not one "scintilla" of evidence that in performing these suspicious acts Friske knew of a forfeiture proceeding against Erickson's property. As a result, the appellate court reversed the convictions based on the insufficiency of the evidence.

We are always pleased to see courts uphold the law and require that prosecutors prove their case. Likewise, we think this ruling makes great sense, so as to prevent the conviction of innocent persons.