CRIMINAL LAW
United States Court of Appeals, Ninth Circuit (2022)
Scott Anderson
In United States v. Kirst, 54 F.4th 610 (9th Cir. 2022), the Ninth Circuit held that an agency
investigation is a “proceeding” within the definition of a federal criminal statute even when the
investigating agency does not have the authority to enforce the law. (Id. at 621). A pilot crashed
his plane while flying passengers who hired him for a photography flight. (Id. at 612). The National
Transportation Safety Board (NTSB) conducted an investigation into the crash, but it did not have
the authority to take any legal action against the pilot. (Id. at 614). During the investigation, the
pilot stated that he was at a certain altitude and that his propellor broke. (Id. at 616). But GPS data
and physical evidence from the crash site contradicted the pilot’s statements. (Id. at 614–16). The
government charged the pilot with obstructing the “due and proper administration of the law” in a
“pending proceeding” under 28 U.S.C. § 1505, and the jury convicted him under that statute. (Id.
at 617–19). On appeal, the pilot argued that the NTSB’s investigation could not be a “proceeding”
because the agency lacked the power to impose sanctions. (Id. at 619). The Ninth Circuit affirmed
the conviction, reasoning that settled circuit precedent considered an administrative investigation
a proceeding under this statute. (Id. at 620). Additionally, the court pointed to a district court case
where an NTSB investigation was a proceeding based on the agency’s ability to issue subpoenas
and administer oaths. (Id.). Affirming the conviction, the Ninth Circuit held that an agency
investigation is a “proceeding” within the definition of a federal criminal statute even when the
investigating agency lacks the authority to enforce the law. (Id. at 621).
