dissenting, but concurring in Part II of Judge O’SCANNLAIN’S opinion.1
I respectfully dissent. It is important to keep in mind that Judge Aguilar was acquitted of the charge that was the major focus of this trial — the charge of conspiracy to influence Judge Weigel concerning a case pending in his court. Judge Aguilar was convicted of two peripheral charges that, in my opinion, cannot be sustained. The statutes that form the basis for these charges have to be stretched far beyond their intended application to be made applicable to the facts of this case. I would reverse both charges on the ground of insufficiency of the evidence because the facts of this case, viewed in the light most favorable to the Government, simply do not meet the statutory requirements for conviction.
Moreover, I would reverse both convictions, even if the evidence were deemed to be sufficient, on the ground that the district judge gave an erroneous knowledge instruction. Knowledge of certain essential facts was an element of both of the crimes of which Judge Aguilar was convicted. The instruction on knowledge that was given by the court permitted the jury to convict on a finding that there was a “high probability” that Judge Aguilar knew the crucial facts, rather than that he was actually aware of the crucial facts. This is a serious departure from the precedent in our circuit on the requirement of knowledge. The instruction given was one that is intended for a case where a “deliberate blindness” instruction is *627justified. We have carefully circumscribed the situations in which such an instruction can be given. Primarily, the instruction has been used in drug or alien smuggling cases, where the facts justify a finding that there was a high probability that the defendant knew what was going on and deliberately chose not to find out. Thus, the defendant was maintaining a “deliberate blindness,” sometimes designated as a “deliberate ignorance.” There are no facts that justify such a finding in this case. The Government does not even contend that this is a “deliberate blindness” case. Rather, the Government contends, and Judge Hall’s opinion accepts the proposition, that this “high probability” instruction is an appropriate definition of knowledge in all eases.
This erroneous instruction to the jury on an essential element of both crimes cannot be overlooked as being harmless beyond a reasonable doubt. There was clearly a genuine factual issue as to whether Judge Aguilar had the requisite knowledge in each count. Whether the jury was required to find that Judge Aguilar kneio of the existence of the essential facts or was only atoare of the high probability of their existence could make a crucial difference. The error was not harmless.2
I. FACTS
Because Judge Aguilar was acquitted of the main charge of conspiracy to influence Judge Weigel, it is fair to view the facts related to this charge from Judge Aguilar’s perspective, as the jury apparently did.
Abe Chapman is related to the Aguilar family by marriage. He is the step-grandfather of Judge Aguilar’s nephew, Steve Aguilar. Although Judge Hall’s opinion describes Abe Chapman in sinister tones, from Judge Aguilar’s perspective he was an alcoholic, semi-senile 83-year-old man whom the family often referred to as “Mr. Magoo.”
Chapman wanted to help his friend Rudy Tham, who had been a labor leader, had been convicted of embezzling $2,000, had served six months, and was then on supervised release. Tham sought to overturn his conviction in a 28 U.S.C. § 2255 proceeding so that he could resume his position as an officer of the local union that he had formed and organized. Chapman and Tham’s attorney, Edward Solomon, sought Judge Aguilar’s help. Chapman and Solomon wanted Judge Aguilar to attempt to improperly influence Judge Weigel in his ruling on this section 2255 petition. However, the jury found that Judge Aguilar did not do so and did not ever agree to do so. Judge Weigel, a highly respected senior district judge, firmly testified that Judge Aguilar made no attempt to influence him in the Tham case.
Judge Aguilar testified:
In a 2255 petition or other petition, you talk about the procedural matters, how to get the matter to court. And that’s what I was talking about with them, about how to get this vehicle to court and how to get this matter before the judge, and I never discussed with them at any time the merits of the case. I wasn’t concerned with the merits of the case. My concern was only helping them on what they should do procedurally.
There is no doubt that Judge Aguilar should not have put himself in the position of giving legal advice in a case pending before a fellow district judge. This is inappropriate for a judge and may well be a violation of judicial ethics, but it is not a crime. As the jury acquitted Judge Aguilar of the conspiracy charge, it was obviously satisfied with this explanation.
Judge Aguilar also was acquitted of the charge that he obstructed justice by trying to influence Solomon to testify falsely before a grand jury. It is important to note that the evidence related to this charge, quoted in Judge Hall’s opinion, must be viewed in the light that Judge Aguilar was acquitted of this charge.
*628The foregoing discussion is intended to allow me to focus on- the specific facts of the charges of which Judge Aguilar was convicted, without our decision being colored by the facts of the charges of which he was acquitted. I now turn to the specific charges of which Judge Aguilar was convicted and the facts involved in those charges.
II. WIRETAP CHARGE
A. Summary of Reasons for Reversal
As previously mentioned, there are two reasons why the wiretap charge under 18 U.S.C. § 2232(c) (1988) cannot be sustained. The first is the insufficiency of the evidence under the statute as it must properly be interpreted. The second is that knowledge of certain facts is a central element of the crime, and the court’s instruction defining knowledge was erroneous and was not harmless error.
Before I embark upon a detailed analysis of the statute and the facts, a summary of the reasons why the evidence is insufficient to sustain the conviction on this charge may be helpful: It is not a crime under section 2232(c) to notify someone that you suspect that your telephone or his telephone is being tapped or that he might be intercepted on someone else’s telephone tap. In order for there to be a violation of section 2232(c), a person must have knowledge of an authorization or application for an authorization to intercept a wire communication and then give notice or attempt to give notice to someone to impede such interception. Judge Aguilar was charged with giving notice of an application for an authorization to intercept a wire communication. In order for the statute to apply,'the interception allegedly impeded had to be one authorized as a result of that application — otherwise it could not qualify as “such interception.” Thus, Judge Aguilar’s viewing on February 6, 1988 of an FBI agent’s surveillance of Chapman entering and leaving Judge Aguilar’s house and his subsequent warning that phones might be tapped, could not constitute a violation of the statute. It is only if the notification can be tied to Judge Peckham’s conversation, six months before, that the statute conceivably could be violated.
In her discussion of section 2232(c), Judge Hall completely omits the statute’s specific reference to “such interception.” See Judge Hall’s opinion at 614. Judge Hall states that “[t]he statute imposes liability on anyone ‘having knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization’ to conduct a wiretap.” Id. However, the statute must be read in its entirety; the statute imposes liability on anyone “having knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization ... in order to obstruct, impede or prevent such interception. ” See 18 U.S.C. § 2232(c) (emphasis added).
Judge Peckham’s purpose in mentioning the wiretap to Judge Aguilar was simply to let Judge Aguilar know that it might not be wise for Judge Aguilar to be associating with Chapman because of an appearance of impropriety. He stated that Chapman’s name had come up in connection with an application for a wiretap authorization and that he had, as an Assistant United States Attorney, prosecuted Chapman many years earlier on a criminal charge. The application that Judge Peckham referred to was an application to tap the telephone of Rudy Tham. This application resulted in an authorization to tap Tham’s telephone from April 20, 1987 to May 20, 1987. The authorization, resulting from the application, had long since expired by the time Judge Peckham spoke to Judge Aguilar. Even assuming that the information Judge Peckham conveyed to Judge Aguilar was sufficient to give Judge Aguilar knowledge that Chapman was an authorized intereeptee, there was no way in which the interception authorized as a result of that application could have been impeded by any notification to Chapman. The authorization had expired. It is all the more clear that eight months thereafter any notification to Chapman could not have violated the statute.
It is only if the statute could be stretched to mean that once an application for authorization to wiretap was filed, notification at any time thereafter would be a violation, that Judge Aguilar’s conviction could be upheld. This is a misconstruction of the statute. An application ends with the granting or the denying of an authorization. If the authori*629zation is denied, there can be no interception resulting therefrom. If the authorization is granted, the authorization terminates in 30 days. Any new authorization or extension requires a new application. See 18 U.S.C. § 2518(5) (1988).
The Government and the opinions of Judge Hall and Judge O’Scannlain seek to avoid this problem by focusing on whether Judge Aguilar knew on February 6,1988 that there was a wiretap on Chapman’s telephone. This would have entailed a new application and authorization. Whether Judge Aguilar “knew” or merely “suspected” that there was a new application and authorization presents a serious factual issue for the jury. The erroneous instruction equating “high probability” with “knowledge” could not be a harmless error. There is a critical distinction between the two concepts.
B. Insufficiency of the Evidence
With this general introduction, I will explain in more detail why the evidence is insufficient to convict under section 2232(c). Judge Aguilar was convicted of Count Six, which charged the following:
On or about February 6, 1988, in the Northern District of California, defendant, Robert P. Aguilar while a United States District Judge, having knowledge that a Federal investigative officer had applied to the United States District Court for the Northern District of California for authorization to intercept wire communications of Abe Chapman, and in order to obstruct, impede, and prevent such interception, gave notice and attempted to give notice of the possible interception to Abe Chapman. In violation of Title 18, United States Code, Section 2232(e).
Judge Aguilar argues that there was insufficient evidence to convict him of this count. I agree.
Section 2232(c) provides in part:
Notice of Certain Electronic Surveillance. — Whoever, having knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization under chapter 119 to intercept a wire, oral, or electronic communication, in order to obstruct, impede, or prevent such interception, gives notice or attempts to give notice of the possible interception to any person shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C. § 2232(c) (emphasis added).
This language requires a pending application for authorization or an authorization that has not expired. The Government argues that, under section 2232(c), it is sufficient if, at some time in the past, there was a wiretap application; it does not matter, under the Government’s theory, if the wiretap application has already been denied or if authorization has been granted but has already expired. This is not a reasonable construction of the statute.
The plain language of the statute makes it clear that the purpose of the statute is to prevent interference with “possible interception.” It is possible that disclosure of an existing wiretap can lead to interference with interception. It also is possible that disclosure of a pending wiretap application, if the application is subsequently authorized, can lead to interference with interception. However, disclosure of an application that already has been denied, or whose authorization already has expired, cannot possibly interfere with “such interception.” The language, “such interception,” shows that the statute pertains to the particular application or authorization of which the defendant has knowledge. The defendant must intend to impede an interception from the specific application or authorization of which he has knowledge..
The statute’s requirement of knowledge of either wiretap applications or wiretap authorizations further demonstrates that the statute applies only to pending applications and unexpired authorizations. If Congress was concerned with the disclosure of wiretap applications even when the applications were no longer pending, it would have been unnecessary to include any language about authorizations; there is never an authorization without an application. There is no indication in the statute that Congress was concerned with expired authorizations, regardless of whether they are the subject of secrecy orders.
Section 2232(c), read with the language essential to this charge, is as follows:
*630Whoever having knowledge that a Federal ... officer ... has applied for ... authorization ... to intercept a wire ... communication in order to obstruct ... such interception gives notice or attempts to give notice of the possible interception to any person shall be fined ... or imprisoned ....
(Emphasis added.)
I conclude that the statutory language is quite clearly directed to disclosure of a wiretap that could possibly result from the application of which the defendant has knowledge — not from some later application, which would require a completely new justification under 18 U.S.C. § 2518(5) (1988). At the very least, this is a reasonable construction of the statute. Judge Hall’s opinion arrives at a different construction and rejects this construction. See Judge Hall’s opinion at 615. In my opinion, Judge Hall’s construction is an unwarranted expansion of the statutory language, and one which ignores the crucial phrase “such interception.” However, even if Judge Hall’s interpretation were possible because of some ambiguity, the more lenient construction is required. To reject a reasonable construction of a statute is incompatible with the rule of lenity. “In interpreting the substantive ambit of criminal prohibitions, ambiguities must be resolved in favor of the criminal defendant.” United States v. Baxley, 982 F.2d 1265, 1270 (9th Cir.1992); see United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); Simpson v. United States, 435 U.S. 6, 14, 98 S.Ct. 909, 913, 55 L.Ed.2d 70 (1978). I find the plain language of the statute to be clear, but even if it were possible to wring Judge Hall’s construction out of some ambiguity in the statute, it would violate the rule of lenity to do so.
Furthermore, there is no indication that “the statute’s primary concern is with the giving of notice with specific intent to interfere with surveillance” in general, as Judge Hall contends. See Judge Hall’s opinion at 615. The statute does not impose liability on a defendant who interferes with “any future surveillance” or “any future wiretap.” Rather, it imposes liability on a defendant who has knowledge of a particular wiretap application or authorization and who gives another person notice of “the possible interception” in an effort to obstruct “such interception.” See 18 U.S.C. § 2232(c). Judge Hall’s expansive interpretation ignores the plain language of the statute.
First Amendment concerns also convince me that section 2232(c) cannot be construed to punish disclosure of all applications regardless of whether the applications are still pending. Statutes must be construed, if at all possible, to avoid constitutional problems. See Blitz v. Donovan, 740 F.2d 1241, 1244 (D.C.Cir.1984). The Government may regulate speech in order to promote a compelling state interest if it employs the least restrictive means to further that interest. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989). The Government does not have a compelling interest in prohibiting the disclosure of all wiretap applications because in many cases there is no danger of interference with a wiretap. The statute, as the Government interprets it, would punish constitutionally protected speech as well as constitutionally unprotected speech. The statute would therefore be overbroad and void on its face. See Clark v. City of Los Angeles, 650 F.2d 1033, 1039 (9th Cir.1981) (“overbreadth doctrine holds that a law is void on its face if it sweeps within its ambit not solely activity that is subject to governmental control, but also includes within its prohibition the practice of a protected constitutional right”), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982). Thus, to avoid this constitutional problem, we must construe the statute to prohibit the disclosure of pending applications and unexpired authorizations only.
The Government admits that the statute is “explicitly directed at those who disclose the existence of the wiretap in order to impede interceptions.” Nevertheless, the. Government argues that the existence of a wiretap or pending application is unnecessary because the statute criminalizes attempts. Thus, the Government maintains, an attempted notification is sufficient for a conviction even if the defendant erroneously believes that there is a pending wiretap application or authorization, whereas in actuality no such application or authorization exists.
Section 2232(c) is not a classic attempt statute. The classic attempt statute criminalizes an attempt to violate another statute *631or another statutory subsection. See, e.g., 18 U.S.C. § 1113 (1988) (criminalizing an attempt to commit murder or manslaughter; murder criminalized by 18 U.S.C. § 1111 (1988) and manslaughter criminalized by 18 U.S.C. § 1112 (1988)); 18 U.S.C. § 1201(d) (1988) (criminalizing an attempt to violate 18 U.S.C. § 1201(a)(4) (1988), which prohibits the kidnapping of foreign officials). There is not a statute that criminalizes attempts to violate section 2232(c), and section 2232(c) does not criminalize an attempt to violate another statute or statutory subsection.
Section 2232(c) itself punishes someone who “gives notice or attempts to give notice” of possible interception. (Emphasis added.) Therefore, we must examine the language of section 2232(c) to discover whether an erroneous belief that there is a wiretap application is sufficient for conviction. A reading of the statute demonstrates that the word “attempt” modifies only the words “to give notice.” There is no modification of the language that requires ''knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization” to tap someone. (Emphasis added.) Therefore, regardless of whether the defendant notifies or attempts to notify someone of possible interception, the defendant must have knowledge of the pending wiretap application or authorization.3
The only application about which Judge Aguilar arguably could have had any knowledge was the application mentioned by Judge Peckham. This application had resulted in the authorization to tap Rudy Tham’s telephone and had expired by the time Judge Peckham spoke to Judge Aguilar. Therefore, there was no possibility that Judge Aguilar by any notification could have impeded an interception authorized as a result of that application.
C. Knowledge Instruction
Even if we accept the Government’s view that the knowledge required is that there was in the past an application, and that after observing the FBI’s surveillance, Judge Aguilar put “two-and-two together” and therefore “knew” that wires were being tapped, and that Chapman was designated as an authorized interceptee, the erroneous knowledge instruction requires reversal.
The district court gave the following instruction defining knowledge:
Knowledge of a fact, members of the jury, means that you’re satisfied from the evidence that he knew it[.] Or knowledge of the existence of a particular circumstance may be satisfied by proof that the defendant ivas aware of a high probability of the existence of that circumstance^} unless you find from the evidence that the defendant actually believed that the circumstance did not exist.
(Emphasis added.)
This instruction was erroneous. There is clearly a difference between knowledge and an awareness of a high probability that a circumstance exists. A person knows of a circumstance if he or she is aware of that circumstance.
The Model Jury Instruction for the Ninth Circuit instructs that “[a]n act is done knowingly if the defendant is aware of the act and does not act [or fail to act] through ignorance, mistake, or accident.” Model Jury Instruction 5.06 (1992) (emphasis added).4 If awareness is knowledge, when a person is aware of a high probability that a circumstance exists, then what the person “knows” is that there is a high probability that the circumstance exists. Knowledge that there is a high probability that a circumstance exists cannot be equated, however, with *632knowledge that the circumstance itself exists. Furthermore, one can be aware of a high probability that something exists and actually believe that it exists, yet this is far short of knowing it exists. One cannot know something that does not exist. Yet, one can be aware of a high probability that a circumstance exists, and even believe that it exists, despite the fact it does not exist.
The knowledge instruction at issue in the instant case was based on Model Penal Code § 2.02(7) which states:
Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
Both the Government and Judge Hall contend that this is an accurate definition of knowledge. I disagree.
According to the Model Penal Code, a person generally “is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” Model Penal Code § 2.02(1). Comment 9 to section 2.02(7) makes it clear that section 2.02(7) is only to be used to fulfill the “knowingly” requirement when willful ignorance is an issue. Comment 9 states:
Subsection (7) deals with the situation that British commentators have denominated “wilful blindness” or “connivance,” the case of the actor who is aware of the probable existence of a material fact but does not determine whether it exists or does not exist.
Model Penal Code § 2.02(2)(b) further demonstrates that section 2.02(7) is not a “comprehensive definition” of knowledge, as Judge Hall contends it is. See Judge Hall’s opinion at 619. Section 2.02(2) is entitled “Kinds of Culpability Defined.” Each crime described in the Model Penal Code requires a specific kind of culpability. Section 2.02(2)(b) defines the culpable state of “knowingly” and includes the definition for knowledge of a circumstance. It provides in relevant part:
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist....
Model Penal Code § 2.02(2)(b) (emphasis added). If section 2.02(7) were a comprehensive definition of knowledge, as Judge Hall maintains it is, there would be no need for section 2.02(2)(b) which is, in fact, the Model Penal Code’s general definition of knowledge.
I am convinced that Model Penal Code § 2.02(7) is relevant only when there is evidence of willful blindness. In United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976), this court considered a case in which the defendant purposely avoided learning whether there was marijuana in the car he was driving from Tijuana, Mexico, to California. In finding that the defendant “knew” of the marijuana, this court recognized that “ ‘knowingly’ includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment.... ” Id. at 704 (emphasis added). If, as Judge Hall and the Government contend, an awareness that a fact is highly probable constitutes knowledge, then the italicized part of the quoted sentence would be superfluous.
The Jewell court went out of its way to make it clear that an awareness of a high probability that a circumstance exists is sufficient to fulfill a requirement of knowledge only when the defendant consciously chooses to avoid obtaining positive knowledge. “It is worth emphasizing,” we stated, “that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance.” Id. (emphasis added) (footnote omitted). Thus, the Jewell court concluded that deliberate ignorance was sufficient to fulfill the knowledge requirement not because deliberate ignorance is the equivalent of knowledge, but because deliberate ignorance is just as culpable as knowledge. Id. at 700.
I can find no decisions by this court or by the Supreme Court that employ section *6332.02(7) as a general definition of knowledge. Both the Government and Judge Hall rely on a footnote in Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 1553 n. 93, 23 L.Ed.2d 57 (1969), for the proposition that section 2.02(7) is a general definition of knowledge. Their reliance on Leary is misplaced. The Leary Court did not purport to adopt section 2.02(7) as a general definition of knowledge. Examination of the footnote reveals that the Court adopted section 2.02(7) only for the purposes of 21 U.S.C. § 176a. The entire footnote states:
Nothing in the legislative history of § 176a is of aid in determining the intended scope of the word “knowing,” as it is used in that section. In making that determination, we have employed as a general guide the definition of “knowledge” which appears in the Proposed Official Draft of the Model Penal Code, at 27 (1962). The Code provides:
“When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”
Leary, 395 U.S. at 46 n. 93, 89 S.Ct. at 1553 n. 93 (emphasis added).
Leary differs in several important ways from the instant case. In Leary, the defendant was convicted of smuggling marijuana into the United States in violation of 21 U.S.C. § 176a. Drug smuggling is the classic case in which deliberate ignorance is a concern. See Jewell, 532 F.2d at 703 (noting the large number of drug smuggling cases involving conscious avoidance). There is no reason to believe that people who reveal wiretaps or wiretap applications often consciously avoid knowledge of the wiretaps or wiretap applications. Certainly, there is no evidence that Judge Aguilar tried to avoid learning about the wiretaps here.
Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), reinforces the conclusion that section 2.02(7) applies only to cases in which deliberate ignorance is a concern. In Timer, the statute at issue, 21 U.S.C. § 174, was virtually identical to the statute at issue in Leary, 21 U.S.C. § 176a. Section 176a was concerned with marijuana smuggling, and section 174 was concerned with narcotics smuggling. The Court concluded, “ ‘Common sense’ (Leary v. United States, supra, 395 U.S. at 46, 89 S.Ct. at 1553) tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled.” Id. 396 U.S. at 417, 90 S.Ct. at 653 (citation in original) (footnote omitted).
With respect to the statutes involved in both Turner and Leary, there was an obvious congressional intent for juries to infer knowledge. Both section 176a5 and section 174 6 explicitly permitted juries to infer or presume knowledge. Nothing on the face of section 2232(c) indicates a congressional intent to allow juries to infer or presume knowledge.
Moreover, contrary to the Government’s contentions, the legislative history of section 2232(c) does not indicate a congressional intent to adopt Model Penal Code § 2.02(7) as a general definition of knowledge. On June 19, 1986, the House Judiciary Committee reported the House bill as H.R. 4952. The report accompanying that bill included a footnote concerning the knowledge requirement for conviction of disclosing a wiretap. See H.R.Rep. No. 647, 99th Cong., 2d Sess. 60, n. 91 (1986). The footnote simply refers to H.R.Rep. No. 1396, 96th Cong., 2d Sess. 32-36 (1980), which accompanied the Criminal Code Revision Act of 1980. The Senate Judiciary Committee issued a report to accompany its own bill, S. 2575. This Senate Report explains that to convict under section 2232(c), “[i]t is required that the defendant have knowledge that the Federal law enforcement or investigative officer has been authorized or has applied for an interception order.” 5.Rep. No. 541, 99th Cong., 2d Sess. 34 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3588. The report makes no attempt to define knowledge, and the footnote present in the House Report is not contained in the *634Senate Report. The House eventually substituted the Senate bill for its own, and Congress enacted the Senate bill into law. Therefore, any definitions of knowledge contained in the House Report would be of dubious value in determining Congress’s intended definition of knowledge.
Even if we were to accept the footnoted reference to H.R.Rep. No. 647 as evidence of congressional intent, it is clear from the report that Congress did not intend to adopt Model Penal Code § 2.02(7) as a general definition of knowledge. The footnote cites pages 32-36 of H.R.Rep. No. 1396. On page 33, the report defines a knowing state of mind as “an awareness of or a firm belief in the existence of the circumstance.”
The only reference in H.R.Rep. No. 1396 to section 2.02(7) is in the discussion of willful blindness. The Report states:
The Model Penal Code language [in Section 2.02(7) ], in the words of its drafters, “deals with the situation British commentators have denominated ‘wilful blindness’ or ‘connivance,’ the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist.” Model Penal Code section 2.02, Comment at 129-30 (Tent. Draft No. 4, 1955). The Committee intends to incorporate this Model Penal Code concept as that concept has been explained in such Federal cases as United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); and United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied, sub nom. Thaler v. United States, 414 U.S. 821, 94 S.Ct. 131, 38 L.Ed.2d 53 (1973).
Id. at 35-36. Both Jewell and Jacobs discuss the language of section 2.02(7) in the context of willful blindness. See Jewell, 532 F.2d at 700-01; Jacobs, 475 F.2d at 287-88.
The Government’s reliance on United States v. Yermian, 708 F.2d 365 (9th Cir.1983), rev’d on other grounds, 468 U.S. 63, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984), is also misplaced. In Yermian, the defendant was convicted of making a false statement in a matter within the jurisdiction of a federal agency, in violation of 18 U.S.C. § 1001 (1976). Id. at 365-66. The issue in Yermian was whether an objective mens rea was sufficient for conviction. The court was not concerned with setting forth a general definition of knowledge. The district court instructed the jury that it could convict the defendant if it found “that the defendant knew or should have known that the information was to be submitted to the government.” Id. at 371 (emphasis in original). In Yermian, we were concerned that the “should have known” language imposed an objective standard, and we concluded that a subjective state of mind was necessary. See id. at 372.
The instruction in the case at bar differs significantly from the instruction in Yermian. Here, we are not concerned that the instruction imposed an objective standard; we are concerned that it imposed the wrong subjective standard. An awareness of a high probability that a circumstance exists is no doubt a' subjective state of mind. Nevertheless, it is a subjective state of mind that differs substantially from the subjective state of mind that is knowledge.
The Due Process Clause places the burden on the Government to prove knowledge beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The instruction relieved the Government of this burden of proof by requiring the jury to infer knowledge from the defendant’s awareness of a high probability that a circumstance existed. The instruction was therefore improper.
The instruction’s balancing clause, which states, “unless you find from the evidence that the defendant actually believed that the circumstance did not exist,” does not remedy the flawed instruction. This clause merely made the conclusive inference rebuttable. The burden of rebuttal was placed on the defendant. Under Sandstrom v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979), this burden shifting is constitutional error. See United States v. Hogg, 670 F.2d 1358, 1363-64 (4th Cir.1982) (instructing jury to infer knowledge from deliberate avoidance unless defendant believed circumstance did not exist was constitutional error). The instruction allowed the jury to convict Judge Aguilar even if he was uncertain about whether there was a wiretap application or authorization. See United *635States v. North, 910 F.2d 843, 886 (D.C.Cir.) (requirement that defendant prove he lacked a belief reverses the burden of proof; knowledge does not mean lack of knowledge), superseded on other grounds, 920 F.2d 940 (1990), cert. denied, — U.S. -, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991).
D. Harmless Error
The erroneous knowledge instruction could not be harmless beyond a reasonable doubt. First, Judge Peckham indicated only that Chapman’s name had come up in connection with an application. He did not indicate that Chapman’s phone was to be tapped or that Chapman was to be a person whose calls would be intercepted. In providing the information required in an application for a wiretap under 18 U.S.C. § 2518(1) (1988), many persons’ names “could come up” in explaining the nature of the investigation without those persons being designated as proposed interceptees. Thus, a question of fact exists as to whether Judge Aguilar “knew” from Judge Peckham’s statements that Chapman’s calls would be intercepted. This is particularly a fact to be resolved when it is recalled that Judge Peckham was simply trying to advise Judge Aguilar that it might be unwise for him to be seen associating with Chapman, and not to relate to him whose messages were to be intercepted by the wiretap.
Secondly, it is important to note that there has been a subtle shift in the Government’s position on what it contends Judge Aguilar had to know. The Government contends it is enough to establish that Judge Aguilar knew there was once an application for a wiretap, in which Chapman’s name came up, and that “putting two-and-two together” he then knew eight months thereafter that there was a wiretap that could intercept Chapman’s messages. Even if we accept this proposition, there is a serious factual question as to what Judge Aguilar could have known and what he merely suspected.
If Judge Aguilar had been completely and fully informed of the application about which Judge Peckham spoke, he would have known that there was an application to tap Tham’s telephone and that Chapman’s messages were designated to be intercepted. Further, he would have known that the authorization was granted on April 20, 1987, and terminated on May 20, 1987. In order for Judge Aguilar to have known that Chapman’s messages could be intercepted on February 6, 1988, over eight months after the authorization terminated, he would have had to have known that a new application had been made, with all of the detailed specific requirements of 18 U.S.C. § 2518(1) having been fulfilled and the authorization having been granted by the court. Even an extension of a prior authorization requires a new application complying with section 2518(1). Furthermore, the Tham application mentioned by Judge Peckham was based on a national labor racketeering investigation, an investigation entirely different from the investigation resulting in the later wiretaps. It is very difficult to see how Judge Aguilar possibly could have “known” of these wiretaps as opposed to having had a mere suspicion, based on the then-current surveillance of Chapman and himself. Even if this were the knowledge required, there was a serious question of fact that the jury was required to resolve under the erroneous instruction. It could not have been harmless error.
The Government argues, and Judge Hall agrees, that any error in the knowledge instruction is harmless beyond a reasonable doubt because Judge Aguilar stated in a taped conversation three months after the time of the alleged offense that he “knew” they were wiretapping Chapman. See Judge Hall’s opinion at 620. We are all familiar with the colloquial expression that we “know” something when we only expect it to be true: “I know it will rain,” “I know someone will be elected,” “I know the road will be clear.” The jury had to evaluate more than this expression; it had to consider what Judge Aguilar actually could have known. He knew that Judge Peckham had stated that Chapman’s name had come up in connection with a wiretap application eight months before, and he knew that there was a person, who he believed to be an FBI agent, that appeared to be conducting a surveillance of Chapman. These facts most certainly present a jury question of whether on February 6, 1988 Judge Aguilar really “knew” Chapman’s communications were being tapped. The instruction requiring that the jury find only a high probability that he knew, as opposed to requiring actual awareness of the fact, would play a crucial part in guiding the jury’s determination of the knowledge element of the crime. It could not be harmless beyond a reasonable doubt.
*636Furthermore, the recent decision of the Supreme Court in Sullivan v. Louisiana, — U.S. -, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), indicates that an erroneous instruction on an essential element of the crime can never be harmless because it deprives a defendant of his Sixth Amendment right to have the jury determine that issue of fact. The Sullivan Court held that an erroneous instruction defining reasonable doubt cannot be harmless because the defendant has a Sixth Amendment right to have the jury determine his guilt. Id. at-, 113 S.Ct. at 2081-83. It does not fulfill Sixth Amendment requirements to have judges hypothesize that a guilty verdict would have been rendered no matter how overwhelming the evidence of guilt might be. Id. at 2081-83.
Justice Scalia’s opinion in Sullivan states: Harmless-error review looks, we have said, to the basis on which “the jury actually rested its verdict.” Yates v. Evatt, 500 U.S. -, -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (emphasis added). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.
Id.
This principle is equally applicable to a finding of an essential element of a crime — in this case, knowledge. In order to render a verdict of guilty, a jury must find all of the essential elements of the crime, under proper instructions. “[A] jury’s verdict [of guilty] cannot stand if the instructions provided the jury do not require it to find each element of the crime under a proper standard of proof.” Cabana v. Bullock, 474 U.S. 376, 384, 106 S.Ct. 689, 696, 88 L.Ed.2d 704 (1986) (emphasis added) (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). Here, the jury did not make afind-ing of knowledge under a proper instruction. For appellate court judges to make this finding, by concluding what the jury would have found under a proper instruction, violates the defendant’s Sixth Amendment right to have a jury actually make that finding. It is a structural error of constitutional dimension— the judges, instead of the jury, are making the finding essential to the verdict. See Sullivan, — U.S. at -, 113 S.Ct. at 2082-83.
Justice Scalia vividly makes this point in his earlier concurring opinion in Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).
The constitutional right to a jury trial embodies “a profound judgment about the way in which law should be enforced and justice administered.” It is a structural guarantee that “reflect[s] a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the State.
In other words, “the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.”
... And the problem would not be cured by an appellate court’s determination that the record evidence unmistakably established guilt, for that would represent a finding of fact by judges, not by a jury. As with a directed verdict, “the error in such a case is that the wrong entity judged the defendant guilty.”
Id. at 268-69, 109 S.Ct. at 2422 (internal citations omitted).
I shall summarize my position:
Judge Aguilar was charged with having knowledge of an application to intercept wire communications and attempting to impede such communications. It is not a violation of section 2232(c) to have knowledge of one application but seek to impede the communications sought to be intercepted by another application.
It is clear that Judge Aguilar could not have impeded any interception of communications sought by the application resulting in the April 20, 1987 authorization. The life of that application had long since ended. Judge Hall and Judge O’Scannlain have adopted the *637Government’s position and focused on Judge Aguilar’s knowledge of a new wiretap on Chapman’s telephone in effect on February 6, 1988. They conclude that by putting two and two together (the knowledge of the earlier application to tap Tham’s telephone and the FBI surveillance on the street) that Judge Aguilar “knew” Chapman’s telephone was being tapped. See Judge Hall’s opinion at 617. Thus, they conclude that this “putting two and two together” is equivalent to actual knowledge and, even more importantly, that this was the only decision the jurors could have reached, even if they, were properly instructed- on the issue.
Following the logic of that approach, it would have to be proved beyond a reasonable doubt that Judge Aguilar knew that a new and different application had been made to tap Chapman’s telephone and that Judge Aguilar sought to impede the interception of communications sought in that application. The earlier application was to tap Tham’s telephone in an entirely different investigation. It is very difficult for me to see how a jury, even under a proper instruction, could have found that Judge Aguilar “knew” of some new application that authorized the tapping of Chapman’s telephone in February of 1988. No doubt he suspected it was true. I can see how a jury under a “high probability” instruction could have determined that Judge Aguilar’s strong suspicions constituted enough proof that the requisite knowledge existed. However, there was, at the very least, a serious factual question concerning his knowledge that had to be determined under a correct instruction on the law. The instructional error could not be harmless beyond a reasonable doubt.
III. OBSTRUCTION OF JUSTICE CHARGE
A. Summai'y of Reasons for Reversal
There are also two reasons for reversing the obstruction of justice charge. The first is that 18 U.S.C. § 1503, under which Judge Aguilar was charged, does not apply to the facts of this case. The second is that even if section 1503 did apply to the facts of this case, the erroneous knowledge instruction, previously' discussed in Section II. C., would require reversal. Knowledge of certain facts are essential elements of the crime, and the erroneous knowledge instruction seriously misinformed the jury about determining these elements of the crime.
B. The Statute Does Not Apply
The conviction on this charge requires reversal because the interpretation of section 1503 cannot be stretched to reach the facts of this case. The facts are that Judge Aguilar, as a target of the investigation, gave misinformation to the FBI, minimizing his involvement with Chapman and attorney Solomon. At most, this is a false statement to the FBI that interferes with its investigation. This type of offense would have to be proved under 18 U.S.C. § 1001 (1988), which concerns false statements to federal agencies. Judge Aguilar was not charged with a violation of section 1001. Furthermore, even under a section 1001 charge, the statute does not apply to certain situations where a truthful response would have incriminated the de-clarant. This is known as the “exculpatory no” doctrine. We explained the application of section 1001 and the “exculpatory no” doctrine in United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (9th Cir.1988).
In the case before us, Judge Aguilar is charged with obstructing justice under section 1503. This requires the obstruction of a judicial proceeding, not simply an FBI investigation. The judicial proceeding he is charged with obstructing is a grand jury investigation of a conspiracy involving himself and others. Judge Aguilar did not coerce, intimidate, or attempt to persuade the FBI agents to testify falsely before the grand jury. He simply misinformed the FBI about the extent of his contacts with Chapman and Solomon. This is not admirable, but it does not constitute the crime of obstructing justice under section 1503.
*638As I state in the next section, there is a serious question as to whether Judge Aguilar had the requisite knowledge that a grand jury was investigating this matter and that these FBI agents were expected to be witnesses. Even assuming he had the requisite knowledge, he did not violate this statute simply by misinforming the FBI of his contacts with Chapman and Solomon. To construe the statute as the Government has in this case would mean that anyone who makes a false statement to any person who is expected to be a witness before a grand jury or any other judicial proceeding about a subject under investigation could be guilty of the crime of obstructing justice. Other statutory sections safeguard against misinformation to a grand jury. False testimony before a grand jury is punishable as perjury. Causing a witness knowingly to testify falsely is suborning perjury. This obstruction of justice statute was simply not intended to extend to the facts of this case. I know of no other reported case where such a charge has been held to be proper, and none has been cited by the Government.7
Judge Aguilar was convicted of Count Eight, which stated:
1. At all times relevant to this count of the indictment, defendant AGUILAR was aware that a federal grand jury in the Northern District of California was investigating possible violations of federal criminal law by ROBERT P. AGUILAR, Abe Chapman, Michael Rudy Tham, and others.
2. On or about June 22, 1988, defendant ROBERT P. AGUILAR, while a United States District Judge, did corruptly endeavor to influence, obstruct, and impede the aforementioned grand jury investigation, and thus the due administration of justice in the Northern District of California, by making false and misleading statements to Special Agents of the Federal Bureau of Investigation concerning defendant AGUILAR’s assistance to Michael Rudy Tham and concerning defendant AGUILAR’s knowledge and disclosure of information concerning court-ordered electronic surveillance of Abe Chapman.
In violation of Title 18, United States Code, Section 1503.
A brief history of section 1503 is enlightening as to Congress’s intended application of the statute. Briefly stated, section 1503, as it was originally enacted in 1948, specifically proscribed certain conduct seeking to influence witnesses in judicial proceedings. The title of the section, as well as the body, indicated that the statute was intended to cover judicial officers, jurors, and witnesses. The full text of the statute is set forth in the margin.8 In 1982, Congress enacted the Victim and Witness Protection Act, 96 Stat. 1248 (1982). This new statute removed all refer-*639enees to witnesses in section 1503 and enacted a new section, section 1512, addressed specifically to the influencing of witnesses, victims, and informants. The Second Circuit in United States v. Hernandez, 730 F.2d 895, 899 (2d Cir.1984), stated in its conclusion that section 1512 replaced that part of section 1503 that pertained to witnesses. The Hernandez case involved a threat to kill a witness, and the court held that the charge could not be sustained under section 1503. Id.
Our court faced a charge of witness tampering under somewhat difference circumstances in United States v. Lester, 749 F.2d 1288 (9th Cir.1984). The facts in the Lester case involved the hiding and bribing of a witness in order to prevent him from testifying in a criminal trial. We disagreed with the broad statement of the Second Circuit in the Hernandez case that “congress affirmatively intended to remove witnesses entirely from the scope of § 1503.” Id. at 1295. We distinguished Hernandez, noting that it dealt with intimidation and harassment of a witness, whereas Lester involved non-coercive witness tampering. We observed that section 1512 did not encompass such non-coercive conduct and, thus, concluded that this conduct still remained punishable under the omnibus clause of section 1503. Id. at 1295-96.
In 1986, the Second Circuit dispelled any doubts about what was meant by the Hernandez opinion, stating that section 1512 was intended to completely supplant the portion of section 1503 that dealt with witnesses. United States v. Jackson, 805 F.2d 457, 461 (2d Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). This presented a clear conflict with our Lester case.
In 1988, Congress obviated this conflict between the Ninth and Second Circuits by amending section 1512 to cover specifically non-coercive witness tampering. This eliminated the problem that we discussed in Lester,9 Section 1512, as it read at the time of our decision in Lester, was limited to witness tampering by a person who accomplished it or attempted to accomplish it through intimidation, physical force, threats or misleading conduct. This left non-coercive witness tampering untouched unless it could be classified as “misleading conduct.” The 1988 amendment to section 1512 inserted the phrase “or corruptly persuades” within the proscribed conduct, thus providing for non-coercive witness tampering. The pertinent part of section 1512 as amended is as follows:
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— (1) influence, delay, or prevent the testimony of any person in an official proceeding;
shall be fined not more than $250,000 or imprisoned not more than ten years, or both.
This amendment was adopted November 18, 1988, approximately five months after the conduct forming the basis for the charge against Judge Aguilar occurred. Thus, in our circuit, under the authority of the Lester opinion, non-coercive witness tampering was still covered under the omnibus clause of section 1503.
The importance of the legislative history to this case is that in removing the conflict between the Ninth Circuit and the Second Circuit, Congress indicated what type of non-coercive conduct was meant to be proscribed with regard to witnesses. It is conduct that “corruptly persuades ... or attempts to do so” in order to influence or prevent the testimony of any person in an official proceeding.
Section 1503 currently provides:
§ 1503. Influencing or injuring officer or juror generally
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indict*640ment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
18 U.S.C. § 1503 (emphasis added.) The italicized part of this statute is often referred to as the “omnibus clause,” and it is the part of the statute that Judge Aguilar is alleged to have violated.
In order to sustain a conviction under that clause, it must be found that Judge Aguilar’s actions “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” Congress’s translation of this requirement as it pertains to witnesses, by its amendment to section 1512, indicates that the conduct must involve a defendant who “corruptly persuades ... or attempts to [persuade]” a witness so as to influence his testimony.
If a person sought to influence the testimony of a witness by bribery or extortion, this would clearly fall within the normally accepted meaning of corrupt. Simply making a false statement to a witness is a far cry from any generally accepted meaning of “corrupt influence” or “corrupt persuasion.” To place in contrast the type of conduct that would be corrupt influence, in my opinion, consider the following hypothetical fact situation: FBI agents go to a judge, state that they have done an investigation, and reveal certain facts that they intend to relate to a grand jury, which indicate that the judge had engaged in a conspiracy to influence another judge. If the defendant judge appeals to them not to so testify because it would harm his career, offers them a bribe not to testify, or threatens that he will see that they lose their jobs if they testify — that would amount to an attempt to corruptly influence the FBI agents to change their testimony.
Judge Aguilar did not try to tell the FBI agents how to testify, did not try to persuade them not to testify, and did not try to dissuade them from testifying as to what then-investigation otherwise revealed. He simply did not tell them the straight story as to his contacts with Chapman and Solomon. This is very different from the other types of activities enumerated in section 1503.
There is a significant difference between making a false statement to a potential witness and trying to get a witness to change his or her testimony through threats, force, bribery, extortion or other means of corrupt persuasion. If “corruptly influence” is extended to mean “making false statements to a potential witness,” we will have expanded the statute far beyond its reasonable construction. If for no other reason, the rule of lenity would preclude such a construction.
An additional reason why the evidence in this case is insufficient to sustain a conviction under section 1503 is the lack of proof that the FBI was acting on behalf of the grand jury. We have interpreted section 1503 as extending only to interference with a pending judicial proceeding. United States v. Brown, 688 F.2d 596, 598 (9th Cir.1982). Interference with a government agency’s investigation is insufficient. Id. There is no evidence that a grand jury had authorized or directed the FBI investigation; nor is there evidence that the FBI agents had been subpoenaed to testify. At most, the conduct alleged was interference with an FBI investigation, not a judicial proceeding. The mere fact that the FBI investigation could result in producing evidence that might be presented to a grand jury is insufficient to constitute a violation of section 1503. In Brown, we held that although warning the target of a search warrant did interfere with a police investigation, it did not constitute interference with a grand jury proceeding even though evidence derived from the search might have been presented to a grand jury. See id.
C. Erroneous Knowledge Instruction
Even if section 1503 applied to false statements made to FBI agents, we would have to reverse because the knowledge instruction was erroneous. The violation of section 1503 requires that the defendant know of the *641pending judicial proceeding and that the FBI agents were expected to be called to testify. See United States v. Washington Water Power Co., 793 F.2d 1079, 1084 (9th Cir.1986). There is a serious question of fact, given the noncommittal responses of the FBI agents, as to whether Judge Aguilar knew a grand jury had been convened and, if so, what it was investigating. Furthermore, it was not at all clear that the agents were expected to be called to testify before a grand jury.
In Section II. C., I have discussed the serious error in the knowledge instruction given by the court. Under that instruction, the jury could have convicted Judge Aguilar even if he was not actually aware of the pertinent facts, provided the jury found that there was a “high probability” that he knew. In light of the conflicting evidence, this error could not have been harmless beyond a reasonable doubt. As previously noted, the Supreme Court’s recent decision in Sullivan indicates that an erroneous instruction on an essential element of the crime can never be harmless. See — U.S. at -, 113 S.Ct. at 2081-83.
IV. CONCLUSION
In conclusion, I would reverse on both counts on the ground of insufficiency of the evidence. The statutes that Judge' Aguilar allegedly violated do not extend to the facts of this case. Even if this were not the case, I would reverse and remand for a new trial on the basis that the knowledge instruction was erroneous and prevented the jury from properly deliberating on essential elements of the crimes charged. In neither case can this serious error concerning essential elements of the crime be determined to be harmless beyond a reasonable doubt.
. Because I am convinced that the convictions on both counts should be reversed, I conclude that there should be no sentence at all. However, the combined opinions of Judge Hall and Judge O’Scannlain affirm the conviction on Count Six. I am thus required to rule on the sentencing issue. I concur in Part II of Judge O’Scannlain’s opinion.
. When the three separate opinions of this panel are combined, it develops that the conviction on Count Eight for obstruction of justice is reversed, and the conviction on Count Six for wiretap disclosure is affirmed. Although Judge O'Scann-lain and I conclude that the knowledge instruction incorrectly stated the law, Judge Hall and Judge O’Scannlain conclude that the error is harmless beyond a reasonable doubt. The conviction on Count Six, therefore, hangs on the harmless error determination, which I discuss in Part II D.
. Section 472 of Title 18 provides a fitting analogy. Section 472 punishes a person who "passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell” counterfeited obligations or securities. 18 U.S.C. § 472 (1988) (emphasis added). To be convicted of passing counterfeit money, the defendant must know that the money is counterfeit. United States v. Palacios, 835 F.2d 230, 232 (9th Cir.1987). In addition, to be convicted of attempting to pass a counterfeit bill, the defendant must know that the bill is counterfeit. See United States v. Lacey, 459 F.2d 86, 88-89 (2d Cir.1972). Thus, the attempt language in section 472 does not eliminate the knowledge element of the crime.
. This definition comports with the definition of knowledge contained in Model Penal Code § 2.02(2)(b), which is discussed below.
. Section 176a provided in part:
Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.
21 U.S.C. § 176a.
. Section 174 provided in part:
Whenever on trial for a violation of this section the defendant is shown to have or to *634havc had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant
explains the possession to the satisfaction of the jury.
21 U.S.C. § 174.
. The Tenth Circuit was recently faced with a case in which a defendant had been charged with violating 18 U.S.C. § 1001 and § 1503 for making false statements to FBI agents who were investigating on behalf of a sitting grand jury. The district court had dismissed the obstruction of justice charge for failure to adequately state a crime under 18 U.S.C. § 1503. United States v. Wood, 958 F.2d 963, 964-65 (10th Cir.), amended on other grounds, 1992 WL 58305 (March 19, 1992).
The specific issue of whether this was a proper charge under section 1503 was not raised in the appeal. The court expressed no opinion on whether the conduct charged was proscribed by section 1503. However, the court expressed some skepticism that it was, noting that obstruction of justice could be committed in a variety of ways but that "we have not found one reported case where a person was charged with, much less convicted of, obstructing justice based on unsworn false statements to FBI agents investigating on behalf of a grand jury." Id. at 974-75 and n. 19.
. § 1503. INFLUENCING OR INJURING OFFICER, JUROR OR WITNESS GENERALLY
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
62 Stat. 769 (1948).
. The Second Circuit in United States v. Masterpol, 940 F.2d 760, 763 (2d Cir.1991), observed that the 1988 amendments “diminished significantly" the force of the Lester precedent. Perhaps, more fundamentally, it could be stated that the problem we saw in Lester was alleviated by Congress.