18 U.S.C. § 401 and 402 - Ignoring Federal Subpoena and Contempt
In recent years, the news cycles have been filled with stories of government officials ignoring subpoenas for various investigations and questions about whether charges will be filed against them.
In reality, however, a subpoena is very serious, and ignoring one can result in harsh consequences, especially at the federal level. If you've been served with a federal subpoena, it's essential to understand what that document is and what it means.
While a subpoena is simply a request that you appear to present documents or testimony, it's also a legal order that can result in federal criminal charges if you do not appear when requested.
The government's authority to impose criminal penalties against you for ignoring a subpoena is contained in Title 18 U.S.C. Sections 401 and 402, known as "contempt of court." You could face significant fines and up to 6 months in jail if convicted.
18 U.S. Code 401 says, “A United States court shall have the power to punish by fine or imprisonment, or both, such contempt of its authority, for the misbehavior of any person, or its officers in their official transactions, to obstruct the administration of justice; and disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
18 U.S. Code 402 says, “Any person or corporation willfully disobeying a lawful writ, process, order, rule, decree, or command of any United States district court, by doing any act or thing, or forbidden, if done as to constitute also a criminal offense under the laws, shall be prosecuted for such contempt provided in section 3691 and shall be imprisoned or fined under this title, or both.”
18 U.S. Code Chapter 21 addresses the issue of contempt, which is a form of obstruction of justice. The related 18 U.S. Code 403 covers the protection of the privacy of child victims and child witnesses.
Put simply, failure to comply with an order of the court might result in a defendant being held in contempt. In some cases, contempt could be filed as a federal crime. Let's review these federal laws in more detail below.
What Does the Law Say?
As noted, ignoring a federal subpoena is one of several forms of federal contempt of court. The laws addressing this issue are combined in 18 U.S.C. 401 and U.S.C. 402.
- 18 U.S.C. 401 defines the authority of United States courts (i.e., federal courts) to impose fines and imprisonment for people who show contempt for their power, whether by various misbehaviors or by "disobedience or resistance to its lawful writ, process, order, rule, decree, or command." (I.e., disobeying a subpoena.)
- 18 U.S.C. 402 authorizes explicitly criminal prosecution of an individual or corporation for "willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia." The penalties are only prescribed for ignoring/disobeying court orders such as subpoenas, not for other forms of contempt of court, which may result in additional liabilities.
It's important to note that federal contempt of court by ignoring a subpoena can be prosecuted independently of any other criminal charges. In other words, you do not have to be accused of any other crime to be charged with federal contempt, nor do you have to be the target of an investigation.
The subpoena is issued only because the court believes you have information that could be useful to the case, but if you ignore the summons, that is a crime in itself.
What Are Some Examples?
EXAMPLE 1: Mike is served a federal subpoena to appear in court to testify against his friend on federal money laundering charges.
Mike is unwilling to testify against his friend and ignores the subpoena, failing to show up for court at the appointed time. Although Mike is not under investigation or on trial, he can be charged with federal contempt of court.
EXAMPLE 2: Lisa is an accountant for her firm. She is issued a federal subpoena to produce certain financial records concerning an investigation into the C.E.O.'s questionable activities.
Lisa fell severely ill on the appointed day and failed to appear. Lisa may claim a valid defense against contempt of court because her failure to produce the information was not willful.
What Are Related Obstruction Crimes?
- 18 U.S. Code 2232 - destroy property to avoid seizure;
- 18 U.S. Code 1510 - obstruction by bribery;
- 18 U.S. Code 1516 - theft of record;
- 18 U.S. Code 1512 - witness tampering.
What Are the Penalties for Violations?
If you willfully ignore a federal subpoena, whether by failing to appear or providing the requested information, a motion may be filed to compel you to appear, followed by a move to charge you with criminal contempt.
If convicted, 18 U.S.C. 402 authorizes the court to impose fines not to exceed $1000 and jail time not to exceed six months.
What Are the Common Legal Defenses?
The primary factor in procuring a conviction for federal contempt is that you were willfully disobedient to the subpoena or court order.
Thus, the most common defenses against ignoring a federal subpoena involve showing that your actions were not willful. Some examples are discussed below.
Perhaps we can argue that you were unable to comply with the subpoena. For example, you might have been physically ill that day; you may have gotten in an accident while attempting to go to court; or, if the subpoena was for documentation, perhaps you no longer had the documents requested or could not locate them.
If your attorney can demonstrate that your inability to comply was due to circumstances beyond your control, you can fight the contempt charges.
Perhaps we can argue that you were unaware of the subpoena. For example, if you were out of the country when the process server tried to bring you the summons and never saw it, you can't be held in contempt because you were not adequately notified.
You need to consult our federal criminal defense lawyers if you have been accused of violating any court order, contempt, obstruction of justice, or violations under Title 18, Chapter 21. We understand the requirements under these statutes for prosecutors to prove their case against you.
Eisner Gorin LLP is located in Los Angeles, CA. We provide legal representation for federal criminal issues across the United States. You can contact us for a case evaluation via phone or contact form.