The Ninth Circuit has determined that a California conviction for witness intimidation is not an obstruction of justice aggravated felony because it is missing the element of a nexus to an ongoing or pending proceeding or investigation. The court also noted that the statute was broader than the federal witness tampering statute because it lacks the requirement that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.”
The court did note that subsections (a) and (c) of Penal Code 136.1 required malice, but subsection (b) (at issue in this case) did not. Nonetheless, the court also analyzed a case interpreting 136.1(a), and determined that the definition of malice “was not the kind of intimidation, threat, corrupt persuasion, or misleading conduct that would give rise to liability under 18 U.S.C. § 1512(b).”
The full text of Cordero-Garcia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/19-72779.pdf