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. When proceeding has not begun. For wrongful interference with an adverse administrative proceeding to occur, administrative proceedings need not be pending nor an investigation begun. However, the accused must have had reason to believe there were or would be adverse administrative proceedings. See US v. Athey, 34 MJ 44 (CMA 1992); and US v. Finsel, 36 MJ 441 (CMA 1993). The following instruction should be given when proceedings were not yet pending or the investigation not yet begun:

NOTE 3. Communication with victims or witnesses. Whether communication with a victim or witness constitutes a wrongful interference with an adverse administrative proceeding may depend on what the authorities knew of the matter under investigation at the time and whether the contact or words spoken are unlawful. (NOTE 3, 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); US v. Kirks, 34 MJ 646 (ACMR 1992) (begging parent of child sexual abuse victim to take back charges in return for information about the extent of the abuse was not obstructing justice; parent was not asked to lie or engage in unlawful activity); US v. Asfeld, 30 MJ 917 (ACMR 1990) (saying to a victim “Don’t report me” is not an obstruction of justice as failing to report was neither unlawful nor would it have an impact on the due administration of justice); 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 with which to work 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 4. 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 5.

NOTE 5. Knowledge of the pendency of the proceedings. The accused must not only have the specific intent to obstruct a potential administrative 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 6. Specific intent, mens rea, and mistake of fact. The accused must have had a specific intent to wrongfully interfere with an adverse administrative proceeding. 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, 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 7. Accomplices and grants of immunity. Trials of wrongful interference with adverse administrative action cases may 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.