                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                           MAY 18, 2001
                                        No. 00-13080                    THOMAS K. KAHN
                                                                             CLERK



                            D. C. Docket No. 00-00046-CR-N


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellant,
                                            versus

BRANCH D. KLOESS,

                                                                   Defendant-Appellee.



                      Appeal from the United States District Court
                          for the Middle District of Alabama


                                       (May 18, 2001)




Before EDMONDSON, HILL and GIBSON*, Circuit Judges.

______________________
*Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
HILL, Circuit Judge:

      Branch D. Kloess was charged with two counts of obstruction of justice.

The district court granted his motion to dismiss the indictment for failure to

establish a violation of the charged offense, and the government filed this appeal

                                          I.

      Branch D. Kloess is an attorney who represented Gene Easterling in May of

1997, when Easterling was given a probated sentence in the United States District

Court for the Middle District of Alabama. While on probation for the federal

offense, Easterling was stopped for a traffic violation and found to be in possession

of a pistol, a violation of the terms of his probation. He provided the police officer

with a driver’s license showing the name Craig Wallace, and was subsequently

charged in the Montgomery Municipal Court under that name.

      Kloess represented Easterling in the municipal court charge, and, as

permitted under Alabama law, entered a plea of guilty in absentia for him. The

indictment alleges that Kloess executed an affidavit giving the Municipal Court

notice that “Craig Wallace” intended to enter a guilty plea through Kloess, his

attorney, and that Kloess wrote a letter to the municipal court judge informing the

court of “Wallace’s” intent to plead guilty in absentia. The indictment further

alleges that Kloess knew that the true identity of “Craig Wallace” was Gene


                                          2
Easterling, and that Kloess knowingly misled the court with respect to “Wallace’s”

true identity in order to conceal Easterling’s probation violation. The indictment

charges that this conduct violates 18 U.S.C. § 1512(b)(3) which provides:

       (b)whoever knowingly . . . engages in misleading conduct toward
       another person with intent to
       ...
             (3) hinder, delay, or prevent the communication to a . . .
             judge of the United States of information relating to the
             commission or possible commission of a Federal offense
             or a violation of conditions of probation.1
             ..


       Kloess moved to dismiss the indictment, contending that its allegations were

insufficient to charge a violation of Section 1512(b)(3). He points to Section

1515(c) of the statute which provides that:

       This chapter does not prohibit or punish the providing of lawful, bona
       fide, legal representation services in connection with or anticipation of
       an official proceeding.

Kloess contends that the government must plead and prove that his conduct was

not protected by this “safe harbor” in the statute. Since the indictment does not



       1
         Kloess was also charged with conspiracy to violate Section 1512(b)(3) in violation of 18
U.S.C. § 371, aiding and abetting Easterling in the violation of Section 1512(b)(3), and
conspiring to aid and abet Easterling in violation of Section 371. We note that Section 1512 is
entitled “Witness Tampering” and was enacted by Congress as a comprehensive witness
protection measure, but is a part of Chapter 73 which is entitled “Obstruction of Justice.” 18
U.S.C. §§ 1501-1515 (1982).


                                                3
allege that the charged conduct did not constitute bona fide legal representation, he

argues that it fails to state an offense under Section 1512(b)(3).

      The Magistrate Judge who first considered Kloess’s motion to dismiss

concluded that the indictment is not defective because, under federal law, it need

only charge the essential elements of Section 1512(b)(3) and Section 1515(c) is not

one of those elements. According to the magistrate, Section 1515(c) provides only

a potential affirmative defense to charges under Section 1512(b)(3).

      The district court disagreed. The district court concluded that when

Congress amended the statute to include Section 1515(c), it intended to put the

burden on the government to prove, as an element of the offense stated in Section

1512, that Kloess was not providing lawful, bona fide, legal representation

services. The court, therefore, granted the motion and dismissed the case.

      The government brings this appeal, arguing that Section 1515(c) is not an

essential element of the offense which the government must negate in its pleading

and proof, but is rather an affirmative defense which must be raised and proved by

the defendant. This appears to be an issue of first impression in this or any other

circuit court. It is also an issue of law which we decide de novo. See United States




                                           4
v. De Castro, 113 F.3d 176, 178 (11th Cir. 1997).2

                                                II.

       Section 1515(c) excepts from culpability conduct which might otherwise be

thought to violate Section 1512(b)(3). To determine whether a statutorily created

exception to a criminal offense is an element of the crime, we undertake a three-

part inquiry. United States v. McArthur, 108 F.3d 1350, 1353 (11th Cir. 1997).

First, we look at the language and structure of the statute itself to determine

whether the exception is part of the general statutory offense. Second, we look at

the legislative history of the statute to determine whether Congress intended to

make the exception an element of the crime. Finally, we look to see whether the

government is well-situated to adduce evidence tending to prove the applicability

of the exception. Id. If the answers to these three questions are “yes,” then the

exception is an element of the offense.

A.     The Statutory Offense

       “In construing a statute we must begin, and often should end as well, with

the language of the statute itself.” Merritt v. Dillard Paper Co., 120 F.3d 1181,

1185 (11th Cir. 1997). The Supreme Court has instructed us time and again that,

       2
        We agree with the district court that the magistrate’s reliance on United States v. Steele,
147 F.3d 1316 (11th Cir. 1998) (en banc), is misplaced. In that case, the relevant statute clearly
spelled out that negation of the “safe harbor” provision for pharmacists was not an element of the
crime of unlawfully dispensing controlled substances. 147 F.3d at 1318.

                                                5
“courts must presume that a legislature says in a statute what it means and means in

a statue what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992).

       Unfortunately, Section 1515(c) does not specify whether the exception it

creates is an element of the offense or an affirmative defense. Kloess suggests that

this fact alone indicates that it must be considered an element of the crime since

“the language commonly used by Congress to create affirmative defenses” is

“glaringly absent from § 1515(c).”3 Congress, however, routinely creates

exceptions to criminal liability for various offenses. Most of these exceptions do

not contain language indicating that they are affirmative defenses rather than

elements of the offenses. Nevertheless, the courts generally interpret them as

affirmative defenses. See e.g., McArthur, 108 F.3d at 1353 (no posting of notice

exception to crime of possession of firearm in federal facility); United States v.

Jackson, 57 F.3d 1012, 1016 (11th Cir. 1995) (prior felony expunged exception to

felon in possession of firearm); United States v. Laroche, 723 F.2d 1541 (11th

Cir.1984) (antique firearm exception to felon in possession); United States v.


       3
         For example, Section 1512(d) specifically states: “In a prosecution for an offense under
this section, it is an affirmative defense, as to which the defendant has the burden of proof by a
preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the
defendant’s sole intention was to encourage, induce, or cause the other person to testify
truthfully.”

                                                 6
Mayo, 705 F.2d 62, 73-76 (2d Cir. 1983) (entrapment exception); United States v.

McCann, 465 F.2d 147, 162 (5th Cir. 1972)(consent exception to illegal wiretap);

United States v. Ramzy, 446 F.2d 1184 (5th Cir. 1971)(physician exception to

illegal dispensing of drugs). We do not find the absence of such language

dispositive.

      The Supreme Court has made clear that “an indictment . . . founded on a

general provision defining the elements of an offense . . . need not negative the

matter of an exception made by a proviso or other distinct clause, whether in the

same section or elsewhere. . . .” McKelvey v. United States, 260 U.S. 353, 357

(1922). Section 1512(b)(3) is a broad prohibition against anyone who knowingly

and willfully engages in misleading conduct with the intent to hinder, delay or

prevent the communication to a law enforcement officer or judge of the United

States of information relating to the commission of a federal offense or violation of

probation. Section 1515(c), on the other hand, is a narrow exception to this general

proscription. It excepts bona fide legal representation from all the ways one could

be culpable under the statute. It appears in a distinct clause, in a different section

of the statute. This suggests that it is not an element of the crime of obstruction of

justice. See McCann, 465 F.2d at 162 (indictment alleging unlawful interception

of wire communications need not charge statutory exceptions found in distinct


                                           7
clause of statute).

       Furthermore, Section 1512(b)(3) “defines a perfectly cogent offense”

without reference to the exception found in 1515(c). See McArthur, 108 F.3d at

1354. The description of the offense proscribes certain conduct and requires that

the defendant acted “knowingly and willfully.” Consequently, we can omit the

exception provided by Section 1515(c) from the statute without doing violence to

the definition of the offense. Under these circumstances, the exception is more

likely to be a defense to the crime rather than an element of it. United States v.

Outler, 659 F.2d 1306, 1309-10 (5th Cir. Unit B. Oct. 1981) (rev’d on other

grounds).4

       Finally, if Section 1515(c) constitutes an element of the obstruction of

justice crimes contained in Chapter 73, the government would be obligated to

negate that the defendant was providing bona fide legal services whenever it

charges a defendant with assaulting a process server under 18 U.S.C. § 1501,

threatening a juror by force under 18 U.S.C. § 1512(b)(3), injuring a juror in



       4
         We are not persuaded by the district court’s conclusion that Section 1515(c) defines an
element of the crime because Section 1515 is entitled “Definitions for certain provisions; general
provision.” (emphasis supplied) Even a cursory reading of the section reveals that subsection (c)
is the general, not a definitional, provision. Nor can Section 1515(c) reasonably be said to be
part of the enacting clause of the statute. The section was not part of the original statute, but was
passed along with a series of technical amendments to the federal criminal code under the
Criminal Law and Procedure Technical Amendments Act of 1986.

                                                 8
retaliation for a verdict under 18 U.S.C. § 1503, stealing court records under 18

U.S.C. § 1506, and witness tampering by murder under 18 U.S.C. § 1512(a). We

do not think that Congress intended this result.

      Thus, our review of the structure of the statute leads us to conclude that

Section 1515(c) is not an element of the crime stated in 18 U.S.C. § 1512(b)(3).

B.    The Legislative History

      The portion of the House report on the Criminal Law and Procedure

Technical Amendments Act of 1986 does not discuss Section 1515(c) at all. See

H.R. Rep. No. 797, 99th Cong., 2nd Sess., reprinted in 1986 U.S.C.C.A.N. 6138-

57. The U.S. Code Congressional & Administrative News did not reprint the

Senate Report on the Act, which is S. Rep. No. 99-278.

      The district court relied upon the floor comments of a single legislator from

the Congressional Record. Such reliance, however, has been eschewed by the

Supreme Court. Garcia v. United States, 469 U.S. 70, 76 (1984). We find the

legislative history inconclusive.

C.    Ease of Proof

      The final McArthur factor to be considered is whether the government or the

defendant is “better equipped to prove facts that would allow them to take

advantage of a statutory exception.” 108 F.3d at 1355. Where the defendant is in


                                          9
the better position to adduce the relevant evidence, we ordinarily view the

exception as an affirmative defense. Id.

      Whether a defendant was providing lawful, bona fide legal representation in

connection with or anticipation of an official proceeding is an issue which the

defendant will usually be in the better position to raise in response to an indictment

alleging a violation of Section 1512(b)(3). For example, the defendant will be in a

better position to establish that he was a practicing attorney at the time of the

offense. Additionally, he will be in the better position to establish that he was

retained to provide legal representation in connection with the charged conduct.

Having done so, he will have affirmatively raised the issue of the applicability of

Section 1515(c).

      We conclude from our analysis of the McArthur factors that Section 1515(c)

is properly characterized as an affirmative defense to rather than an element of the

crime defined in Section 1512(b)(3). See United States v. Kellington, 217 F.3d

1084, 1098 (9th Cir. 2000) (characterizing Section 1515(c) as “a complete defense

to obstruction of justice”). This conclusion, however, only answers the question of

who has the burden of pleading it in a case charged under Section 1512(b)(3). The

answer is that the government need not plead that the exception does not apply.

Rather the defendant must affirmatively raise the issue.


                                           10
       The parties, however, have briefed and argued this appeal as though

resolution of the burden of pleading also resolves the issue of the burden of proof.5

We do not agree. The proper resolution of the burden of proof requires an

additional inquiry into the sort of defense which is provided by Section 1515(c).

                                               III.

       A defendant need not offer any defense. It has long been established that:

       The burden of proof is never upon the accused to establish his
       innocence, or to disprove the facts necessary to establish the crime for
       which he is indicted. It is on the prosecution from the beginning to
       the end of the trial, and applies to every element necessary to
       constitute the crime.

Davis v. United States, 160 U.S. 469, 487 (1895).

       A defendant may, however, choose to introduce evidence to show

“affirmatively that he was not criminally responsible for his acts.” Id. at 478. At

common law, the defendant bore the burden of pleading and proving all such

“affirmative” defenses, a practice which does not offend the Constitution.

       5
         Since this is an appeal of the grant of a motion to dismiss the indictment for failure to
state a violation of the charged offense, only the burden of pleading is at issue in the case. The
parties, however, spent as much time arguing about who has the burden of proof as they did who
had the burden of pleading. The district court also framed the issue as “whether Section 1515(c)
is an affirmative defense which the defendant must prove.” Of course, since the district court
ultimately held that Section 1515(c) constitutes an element of the offense under Section
1512(b)(3), it held that the government must not only plead it but prove it. Our conclusion that
Section 1515(c) is an affirmative defense resolves the burden of pleading, but leaves the issue of
the burden of proof on the defense unresolved. While the issue is not technically raised by the
motion to dismiss, the parties argued it and the court decided it. Therefore, we shall consider it
since to do otherwise would invite further legal error.

                                                11
Patterson v. New York, 432 U.S. 197, 202, 210 (1977).6 State statutes which place

this burden on the defendant are also constitutional. Id. (“If the State . . . chooses

to recognize a factor that mitigates the degree of criminality or punishment, we

think the State may assure itself that the fact has been established with reasonably

certainty”).

       There has been a twentieth-century trend toward requiring the government to

bear the burden of persuasion on certain affirmative defenses. See Patterson, 432

U.S. at 207 n.10. An examination of the cases reveals, however, “a quite divided

jurisprudence, without any clear default rule as to how affirmative defenses

generally should be treated.” United States v. Dodd, 225 F.3d 340, 348 (3d Cir.

2000).

       There is agreement, however, on one sort of affirmative defense. Any

defense which tends to negate an element of the crime charged, sufficiently raised

by the defendant, must be disproved by the government. Patterson, 432 U.S. at

206-07; Deleveaux, 205 F.3d at 1298.7 “The Due Process Clause requires that the

       6
       “All . . . circumstances of justification, excuse or alleviation” rested on the defendant. 4
W. Blackstone, Commentaries 201.
       7
         The government’s suggestion that Deleveaux supports its position that the defendant
bears the burden of persuasion on a Section 1515(c) defense is mistaken. First, Deleveaux does
not say that all statutorily created defenses are affirmative defenses on which the defendant bears
the burden of persuasion. On the contrary, it quotes from United States v. Alvarez, 755 F.2d 830,
842 n.12 (11th Cir. 1985), in which we explained that for affirmative defenses, “[t]he ultimate
‘burden of persuasion,’ . . . may fall on either the government or the defendant, as determined by

                                                12
prosecutor bear the burden of persuasion beyond a reasonable doubt only if the

[defense] makes a substantial difference in punishment and stigma. The

requirement of course applies a fortiori if the [defense] makes the difference

between guilt and innocence.” Patterson, 432 U.S. at 226 (Powell, J., dissenting).

Therefore, if the defendant introduces evidence that has the effect of negating any

element of the offense, the government must disprove that defense beyond a

reasonable doubt. Patterson, 432 U.S. at 210; Deleveaux, 205 F.3d at 1298.

       Section 1515(c) provides such an affirmative defense. To violate Section

1512(b)(3), the defendant must knowingly act with the specific intent to hinder or

delay the communication to the court of the commission of a federal offense or

probation violation. United States v. Veal, 153 F.3d 1233, 1248 & n. 20 (11th Cir.

1998). See also Kellington, 217 F.3d at 1098; United States v. Davis, 183 F.3d

231, 253 (3d Cir. 1999). In order to convict a defendant under Section 1512(b)(3),

the government must prove that the defendant acted with an improper purpose.

Veal, 153 F.3d at 1250 (statute punishes a “defendant’s intention to thwart an

inquiry into [a] crime”). Section 1515(c) provides a complete defense to the statute

because one who is performing bona fide legal representation does not have an



statute or court decision”). Second, Deleveaux specifically recognizes that any defense, be it
affirmative or not, which negates an element of the crime charged, must be negated by the
government beyond a reasonable doubt. 205 F.3d at 1298.

                                               13
improper purpose. His purpose – to zealously represent his client – is fully

protected by the law. Section 1515(c), therefore, constitutes an affirmative defense

which negates an element of the offense stated in Section 1512(b)(3).

      The Due Process Clause “protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970)

(emphasis added). No defendant can be convicted under Section 1512(b)(3) unless

the government proves every element of the offense beyond a reasonable doubt.

Since the proper invocation of Section 1515(c) raises an inference of lawful

purpose which negates the mens rea element of Section 1512(b)(3), the defendant

is entitled to an acquittal if the government does not overcome the inference. Id.

      A defendant-lawyer seeking the safe harbor of Section 1515(c) must

affirmatively show that he is entitled to its protection. See Jackson, 57 F.3d at

1016 (“[w]here affirmative defenses are created through statutory exceptions, the

ultimate burden of persuasion remains with the prosecution, but the defendant has

the burden of going forward with sufficient evidence to raise the exception as an

issue”). This is a minimal burden. Evidence tending to show that the defendant is

a licensed attorney who was validly retained to perform the legal representation

which constitutes the charged conduct is sufficient to raise an inference of innocent


                                          14
purpose.8 Any requirement to do more would unconstitutionally shift the burden to

the defendant to prove his innocence by negating an element of the statute – the

required mens rea. This the Constitution forbids. Mullaney v. Wilbur, 421 U.S.

684, 702 (1975) (“although intent is typically considered a fact peculiarly within

the knowledge of the defendant, this does not, as the Court has long recognized,

justify shifting the burden to him”); Davis, 160 U.S. at 487 (“the burden of proof . .

. is never upon the accused to establish his innocence, or to disprove the facts

necessary to establish the crime for which he is indicted”); Deleveaux, 205 F.3d at

1298.

        Once the Section 1515(c) defense has been fairly raised, the government

must undertake to prove its case, including the requisite improper purpose, by

adducing evidence that the charged conduct did not constitute lawful, bona fide

representation. See United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989)

(testimony regarding ethical obligations very relevant to attorney-defendant’s

intent and state of mind); Kellington, 217 F.3d at 1098 (“It is well settled that in



        8
         Where, as in this case, the government’s indictment alleges all the necessary facts to
invoke the applicability of Section 1515(c), i.e., that the defendant is a validly licensed attorney
who was retained to provide legal representation and that the charged conduct consists of that
representation, the defendant’s burden of production is met by the indictment. See Patterson, 432
U.S. at 231 n. 17 (Powell, J., dissenting) (even if burden of production on defendant,
prosecution’s case may contain sufficient evidence supporting defendant’s position to generate
jury issue).

                                                15
the prosecution of a lawyer for conduct stemming from his or her representation of

a client, expert testimony is relevant to establish the lawyer’s intent and state of

mind”); accord United States v. Machi, 811 F.2d 991, 999-1000 (7th Cir. 1987);

United States v. Klauber, 611 F.2d 512, 520 (4th Cir. 1979); United States v.

Rabbitt, 583 F.2d 1014, 1028-29 (8th Cir. 1978).

      The defendant is entitled to rebut the government’s proof. Kelly, 888 F2d at

744; Kellington, 217 F.3d at 1098; United States v. Cavin, 39 F.3d 1299, 1309 (5th

Cir. 1994) (“[A] lawyer accused of participating in his client’s fraud is entitled to

present evidence of his professional, including ethical, responsibilities, and the

manner in which they influenced him. Exclusion of such evidence prevents the

lawyer from effectively presenting his defense”). As we noted in Kelly, “it would

be incongruous to admit such evidence when tendered in support of guilt, but not

when offered for exculpatory purposes.” 888 F.2d at 744.

      Having fairly raised the Section 1515(c) defense to culpability under Section

1512(b)(3), the defendant is entitled to an acquittal unless the jury finds that the

government proved beyond a reasonable doubt that the defendant’s conduct did not

constitute lawful, bona fide legal representation.

                                          IV.

      In view of the foregoing, we hold that Section 1515(c) constitutes an


                                           16
affirmative defense to the crime stated in 18 U.S.C. § 1512(b)(3). Although the

burden of raising Section 1515(c) as a defense is on the defendant, the burden of

proof as to its non-applicability is always on the government. As the district court

dismissed this indictment for its failure to allege the non-applicability of Section

1515(c) to the charged conduct, we reverse the judgment and remand for further

proceedings.

      REVERSED AND REMANDED.




                                          17
