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It just became harder for the U.S. Department of Justice to prove a case of witness tampering. Now federal defendants may not be convicted of witness tampering under 18 U.S.C. § 1512(b)(1) unless the government can prove that the defendant does more than appeal to a person’s right to exercise a privilege not to testify. Rather, the government must prove some other wrongful conduct, such as coercion, intimidation, bribery, suborning perjury, etc. The new interpretation of the term “corruptly” will likely significantly aid defendants in other criminal prosecutions, such as tax offenses.
In United States v. Doss, ___ F.3d ___ (9th Cir. 2011), the Ninth Circuit resolved a split involving section 1512(b)(1) in the term “corruptly persuades” in the witness tampering statute. Section 1512(b) provides in pertinent part:
(b) Whoever knowingly uses intimidation, 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;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; . . . .
(Italics added.) The court took sides in a circuit split over the type of conduct that falls within the phrase, “corruptly persuades.” After considering some relevant dicta in the Supreme Court’s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the court sided with the Third Circuit and held that there must be something more inherently wrongful about the persuasion, such as bribery or encouraging someone to testify falsely, to fall within “corruptly persuades.” (United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997); Ct. United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996), and United States v. Shotts, 145 F.3d 1289, 1300-01 (11th Cir. 1998) (requiring the lower scienter requirement of only persuasion with an “improper purpose,” such as self-interest in impeding an investigation).) In reviewing the sufficiency of the evidence of a conviction, the court found that the evidence at trial established only that Doss appealed to his wife to exercise her marital privilege not to testify against him, and without more, was insufficient to establish “corrupt” as opposed to innocent persuasion, and reversed the conviction on that count.
Defense attorneys have another arrow in their quiver to challenge an indictment charging witness intimidation. However, it is not often that the witness will possess a privilege that will enable them to refrain from testifying. The key for defendants is to make sure they use all of their persuasive powers to convince their privilege-holding witness not to testify based on those privileges alone, and to avoid such wrongful conduct as intimidation, coercion and bribery.