NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

NOTE 2. Administrative process as “criminal proceedings.” Criminal proceedings do not include administrative processes. US v. Turner, 33 MJ 40 (CMA 1991) (Presenting a false urine sample during a unit, command-directed urinalysis inspection does not constitute obstruction of justice. Acts of the accused were intended to preclude discovery of her offense by impeding an inspection, not a criminal investigation. Administrative inspections to determine the readiness and fitness of a unit are unlike searches and not part of the criminal justice process.) If there is an issue whether the proceeding allegedly obstructed or intended to be obstructed was criminal, the following may be given:

NOTE 3. When charges not pending or investigation not begun. For an obstruction of justice to occur, charges need not have been preferred nor an investigation begun. However, the accused must have had reason to believe there were or would be criminal proceedings. US v. Athey, 34 MJ 44 (CMA 1992); and US v. Finsel, 36 MJ 441 (CMA 1993). See also the cases and discussion in NOTE 3 below. The following instruction should be given when charges were not yet preferred or the investigation not yet begun:

NOTE 4. Communication with victims or witnesses. Whether communication with a victim or witness constitutes an obstruction of justice may depend on what law enforcement authorities knew of the offense at the time and whether the contact or words spoken are unlawful. (NOTE 5, infra, also addresses issues where the accused may have advised a witness to exercise a right to remain silent.) See US v. Guerrero, 28 MJ 223 (CMA 1989) (guilty plea to obstruction of justice upheld where accused told witnesses to lie to criminal investigators after the accused committed an assault); and US v. Hullet, 36 MJ 938 (ACMR 1993), rev’d on other grounds, 40 MJ 189 (CMA 1994) (accused who apologizes to his/her victim of past indecent language, asks for a truce, and offers to throw out prior counseling statements “and give [victim] a clean slate to work with” does not commit obstruction of justice when there was no evidence accused knew or had reason to believe that the victim had initiated criminal proceedings). Compare US v. Barner, 56 MJ 131 (CAAF 2001) (a request “not to tell” after victim had reported incident, in an attempt to dissuade victim from pursuing complaint, was sufficient to support a finding of obstructing justice). When this issue is raised by the evidence, the following may be given:

NOTE 5. Advising a witness to exercise a right to remain silent. When the evidence raises that the accused advised a prospective witness to exercise an Article 31 or Fifth Amendment right to remain silent, the military judge should give the instruction immediately following this NOTE on how the accused’s motivation relates to the specific intent element of the offense. See Cole v. US, 329 F.2d 437, 443 (9th Cir.), cert. denied, 377 U.S. 954 (1964) (“We hold the constitutional privilege against self-incrimination is an integral part of the due administration of justice. A witness violates no duty to claim it, but one who...advises with corrupt motive to take it, can and does himself obstruct or influence the due administration of justice.”). As to a mistake of fact defense on this issue, see NOTE 7.

NOTE 6. What constitutes obstruction of justice—acts embraced in the “original” offense. When an accused commits, plans to commit, or conspires to commit an offense in such a way that it embraces activity designed to conceal the commission of the offense or avoid detection, a separate charge of obstruction of justice is neither automatically triggered nor normally appropriate. For example, where individuals conspire to rob a bank and leave the country after the robbery, conspiracy and robbery charges would be appropriate but a separate charge of obstruction of justice by leaving the country would not. US v. Williams, 29 MJ 41 (CMA 1989). The line separating the end of the principal offense from the beginning of obstruction of justice is often difficult to discern. Each offense must be considered on a case by case basis. US v. Finsel, supra. When the issue of whether the acts of the accused are part of the original offense or a separate act amounting to obstruction of justice is raised by the evidence, the following may be appropriate:

NOTE 7. Knowledge of the pendency of the proceedings. The accused must not only have the specific intent to obstruct a potential criminal proceeding, he/she must also have reason to believe that proceedings had begun or would begin. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.

NOTE 8. Specific intent, mens rea, and mistake of fact. The accused must have had a specific intent to impede the due administration of justice. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-13, Mistake of Fact, may also be applicable. When evaluating a possible mistake of fact defense, the military judge must be mindful that if the accused has a corrupt purpose (See NOTE 5 supra), mistake of fact may not be a defense even if the accused thought he/she was advising another to do a lawful act. See Cole v. US, supra, at 443.

NOTE 9. Accomplices and grants of immunity. Trials of obstruction of justice cases often involve the testimony of accomplices or testimony under a grant of immunity. When an accomplice testifies, Instruction 7-10, Accomplice Testimony, must be given upon request. Instruction 7-19, Witness Testifying Under Grant of Immunity or Promise of Leniency, should be given when an immunized witness testifies.