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Home / Opinion Digests / Civil Practice / Criminal Practice – Obstruction of Justice – Common Law – Campaign Finance Fraud – First Impression

Criminal Practice – Obstruction of Justice – Common Law – Campaign Finance Fraud – First Impression

State v. Wright. (Lawyers Weekly No. 10-07-0758, 15 pp.) (Martha A. Geer, J.) Appealed from Wake County Superior Court. (Donald W. Stephens, J.) N.C. App.

Holding: Years of filing false campaign finance disclosure reports with the N.C. State Board of Elections fits within the broad definition of common law obstruction of justice.

No error in defendant’s conviction of felony obstruction of justice.

Defendant appeals his conviction of felony obstruction of justice, contending his failure to file complete and true campaign finance disclosure reports with the N.C. State Board of Elections (SBOE) cannot constitute common law obstruction of justice.

We recognize that our courts have not previously encountered an attempt to apply this criminal common-law offense in circumstances similar to those in this case. Nevertheless, after reviewing N.C. precedent and considering the rationale underlying the common-law offense, we hold defendant’s conduct fits within the definition of common-law obstruction of justice adopted by our courts.

Based on the complaint of a voter, the SBOE investigated defendant’s campaign finances. Defendant had identified “Velma McCoy” as his treasurer, but he had failed to provide the SBOE with her contact information, and the SBOE was unable to locate her. The SBOE also learned that the bank account defendant had on record as his campaign account had been closed several years earlier, but that his campaign had five other bank accounts, one of which was a joint account he shared with his wife and another of which was his own personal account.

Ultimately, the SBOE determined that defendant had failed to disclose $150,350 in contributions and $76,892 in transfers from campaign accounts to defendant. After the irregularities were brought to his attention, defendant failed to amend the reports.

On Dec. 10, 2007, defendant was indicted for felony obstruction of justice. On Aug. 27, 2008, the jury convicted defendant of that charge.

In In re Kivett, 309 N.C. 635, 309 S.E.2d 442 (1983), our Supreme Court confirmed that “obstruction of justice is a common-law offense in North Carolina” that was not abrogated by G.S. Chap. 14, Art. 30, which sets out statutory “obstruction of justice” offenses. The court then adopted the following definition of the common-law offense: “At common law it is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice. The common-law offense of obstructing public justice may take a variety of forms. …”

Common law obstruction of justice extends beyond interference with criminal proceedings.

The state argues that defendant is guilty of common-law obstruction of justice “because he knowingly filed with the [SBOE] false campaign finance reports with the intent of misleading the [SBOE] and the voting public about the sources and uses of his campaign contributions.”

During the relevant time frame, defendant was a member of the House of Representatives and was four times a candidate for re-election. He was required to file regular campaign finance disclosure reports with the SBOE to provide both the SBOE and the public with accurate information about his compliance with campaign finance laws, the sources of his contributions, and the nature of his expenditures.His reports were made under oath or under penalty of perjury.

We believe these facts fall within the scope of the common-law offense of obstruction of justice. Defendant’s sworn false reports deliberately hindered the ability of the SBOE and the public to investigate and uncover information to which they were entitled by law: whether defendant was complying with campaign finance laws, the sources of his contributions, and the nature of his expenditures. Further, his false reports concealed illegal campaign activity from public exposure and possible investigation.

Defendant’s preventing, obstructing, impeding, and hindering of the SBOE’s and the public’s ability to review what defendant was doing with respect to campaign contributions and funds constitutes preventing, obstructing, impeding, or hindering public justice. Because under Kivett‘s definition, this conduct amounts to common law obstruction of justice, the trial court properly denied defendant’s motion to dismiss.

The ex post facto clause applies to legislative and not judicial action. Since defendant is not arguing that a legislative act is being retroactively applied to him, ex post facto analysis is inapplicable.

Furthermore, defendant cites no authority that precludes the district attorney from proceeding on a common law charge when a potentially applicable statutory charge is barred by the statute of limitations or could result in a lesser sentence. Nor do we see how a choice to proceed under applicable common law implicates the ex post facto clause.

G.S. § 14-3(b) provides, “If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony.” The district attorney had the discretion to decide to seek enhancement of the charge under this statute. We fail to see how the application of G.S. § 14-3(b), which was effective in its current form prior to defendants’ acts, constitutes an ex post facto application of the law.

Finally, according to defendant, while the indictment specified that he was obstructing public access to the information, the trial court’s jury instructions focused on obstructing the SBOE’s access. We believe that this is a distinction without a difference.

The means by which the public obtains access to information about a candidate’s contributions and expenditures is through the reports filed with the SBOE. It is the responsibility of the SBOE to maintain the reports, provide public access to the reports, and to determine the accuracy of the reports to ensure that the public has accurate information.

Consequently, a candidate obstructs the public’s access to the information required by law by obstructing the access of the SBOE. When a candidate conceals information from the SBOE or deceives the SBOE, he necessarily also does so as to the public. Therefore, we hold that the trial court’s instructions did not improperly deviate from the charge in the indictment.

No error.

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