Interpreting the Meaning of "corruptly Persuades": Why the Ninth Circuit Got it Right in United States v. Doss, 630 F.3d 1181 (9th Cir. 2011)

• Jurisdiction: United States,Federal
• Citation: Vol. 92
• Publication year: 2021

92 Nebraska L. Rev. 966. Interpreting the Meaning of "Corruptly Persuades": Why the Ninth Circuit Got It Right in United States v. Doss, 630 F.3d 1181 (9th Cir. 2011)

Interpreting the Meaning of "Corruptly Persuades": Why the Ninth Circuit Got It Right in United States v. Doss, 630 F.3d 1181 (9th Cir. 2011)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 967

II. Background ........................................... 969
A. History of Federal Obstruction of Justice .......... 969
B. Circuit Split ....................................... 970
1. The Second Circuit ............................ 970
2. The Third Circuit .............................. 971
3. The Eleventh Circuit .......................... 973

III. Arthur Andersen LLP v. United States, 544 U.S. 696 (2005)................................................ 974
A. Facts and Procedural History ...................... 974
B. Analysis and Opinion .............................. 976

IV. United States v. Doss, 630 F.3d 1181 (9th Cir. 2011). . . 977
A. Facts and Procedural History ...................... 977
B. Analysis and Opinion .............................. 978

V. Analysis .............................................. 980
A. Statutory Construction Requires Adoption of the Narrow Interpretation ............................. 980
1. The Broad Interpretation Renders the Word "Corruptly" Meaningless ....................... 980
2. Canons of Construction Suggest the Narrow Interpretation ................................. 982

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3. The Rule of Lenity Requires Adoption of the Narrow Interpretation ......................... 983
B. Comparison with Section 1503 Is Inappropriate . . . . 984
C. The Narrow Interpretation Does Not Conflict with Congressional Intent .............................. 986

VI. Conclusion ............................................ 988

I. INTRODUCTION

The prosecution and deterrence of witness tampering is unmistakably a major concern of our criminal justice system. Indeed, "[w]ithout the cooperation of victims and witnesses, the criminal justice system would cease to function."(fn1) As important as this concern is, however, there must be clear limits on what type of conduct comprises witness tampering in the eyes of the law.(fn2) Congress has laid out those limits in 18 U.S.C. §1512 -the federal witness tampering statute. Section 1512(b) prohibits the corrupt persuasion of another person with the intent to impede an official proceeding.(fn3) Unfortunately, courts apply different interpretations of § 1512(b),(fn4) resulting in a troubling split among several of the federal circuit courts.(fn5) These courts disagree about whether it is corrupt to persuade a witness to withhold testimony from an official proceeding when that witness has a legal right to do so.(fn6) While the Second and Eleventh Circuits hold that such conduct is within the coverage of the statute,(fn7) the Third Circuit holds that such conduct does not necessarily amount to witness

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tampering.(fn8) The key issue is whether corrupt persuasion requires mere persuasion motivated by an improper purpose (such as self-interest in impeding an investigation)(fn9) or persuasion that involves otherwise wrongful means (such as bribery or inducement to commit perjury).(fn10) Most recently, the Ninth Circuit joined the Third Circuit in adopting a narrow interpretation of the corruptly persuades clause.(fn11)

United States v. Doss represents a significant development in this circuit split because the Ninth Circuit was the first federal circuit to take a position on the issue after the Supreme Court decision in Arthur Andersen LLP v. United States.(fn12) This Note examines the arguments presented on both sides of the issue and discusses whether the Ninth Circuit applied the correct interpretation of § 1512(b) in United States v. Doss. Part II explains the history of federal witness tampering and of the corruptly persuades clause, in addition to further examining the circuit split as it existed before United States v. Doss. Next, Part III provides further backdrop by analyzing the Supreme Court's guiding opinion in Arthur Andersen LLP v. United States. Part IV examines the reasoning and conclusion offered by the Ninth Circuit in United States v. Doss. Part V then argues that the Ninth Circuit's narrow interpretation is the correct reading of the statute, evidenced by the fact that it is the only interpretation consistent with both the statutory language and the Supreme Court's guidance. Part V further argues that the legislative history is largely indeterminate and does not reveal congressional intent suggesting a broad interpretation of the corruptly persuades clause.(fn13)

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II. BACKGROUND

A. History of Federal Obstruction of Justice

Federal witness tampering was historically prosecuted under 18 U.S.C. §1503 (the general obstruction-of-justice statute), which "subjected to punishment '[w]hoever corruptly, or by threats or force, or by any threatening letter or communication, endeavor[ed] to influence, intimidate, or impede' any witness, juror, or court officer."(fn14) Prior to 1982, this statute covered all federal obstruction of justice actions, including witness tampering.(fn15) However, due to concerns that the statute's broad coverage was inadequate to protect victims and witnesses in criminal proceedings,(fn16) Congress passed the Victim and Witness Protection Act (VWPA) in 1982 to provide additional protection to victims and witnesses in federal cases.(fn17) Section 1512 was enacted as part of the VWPA, but the statute did not initially prohibit the corrupt persuasion of witnesses.(fn18) As originally enacted, § 1512 had a large gap in its coverage of witness tampering, which was pointed out by the Second Circuit in United States v. King.(fn19)

In King, the defendant was involved in a counterfeit money operation, and the jury found him guilty of conspiring to deal in counterfeit money and witness tampering in violation of § 1512.(fn20) The evidence showed that King attempted to bribe his coconspirator to give false information to the government, but the trial judge vacated the verdict on the witness tampering count, finding that King's "nonmisleading, nonthreatening, [and] nonintimidating" conduct did not fall within the ambit of § 1512 as it was initially enacted.(fn21) The Second Circuit had previously held that the simultaneous removal from § 1503 of any reference to witnesses coupled with the enactment of § 1512-specifically pertaining to witnesses-indicated that § 1503 no longer specifically applied to witness tampering.(fn22) Because § 1512 did not initially include noncoercive corruption of witnesses, there existed a "gap" in the legislation.(fn23) The Second Circuit held that King's conduct did not fall within the ambit of § 1512 and declined to "distort the plain language of § 1512" by reading into it the inclusion of conduct such as King's.(fn24)

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Instead, the court invited "Congress to enact legislation to close the gap."(fn25)

Congress accepted the Second Circuit's invitation in 1988, when it amended § 1512(b), by striking "or threatens" from the original language and replacing it with "threatens or corruptly persuades."(fn26) This amendment was included in the Anti-Drug Abuse Act of 1988(fn27) and did not expressly define the type of conduct covered by the new corruptly persuades clause.(fn28) The addition of this clause without an explicit definition of its intended coverage has led to the current circuit split over the meaning of the language.

B. Circuit Split

Before the Ninth Circuit considered the issue in United States v. Doss, there were three federal circuits involved in the split-the Second, Third, and Eleventh. The Third Circuit adheres to the narrow interpretation of the corruptly persuades clause,(fn29) while the Second and Eleventh Circuits adhere to the broad interpretation.(fn30)

1. The Second Circuit

The Second Circuit first weighed in on this issue in United States v. Thompson.(fn31) In Thompson, the defendant was involved in a drug distribution operation. He was convicted of witness tampering under § 1512(b) for encouraging a coconspirator to affirmatively lie before a grand jury regarding the number of drug transactions that had occurred between them.(fn32) Thompson also attempted to dissuade other coconspirators from providing information about the drug operation to federal investigators.(fn33) On appeal, Thompson argued that § 1512(b) violates the First Amendment by broadly prohibiting persuasion-

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which is protected speech-and that the statute is unconstitutionally vague.(fn34)

The Second Circuit rejected this first argument by explaining that § 1512(b) does not prohibit all persuasion-only persuasion that is corrupt.(fn35) Relying on other courts' interpretations of the "parallel provision" in § 1503, the Second Circuit concluded that the presence of "corruptly" as a modifying term "means that the government must prove that the defendant's attempts to persuade were motivated by an improper purpose."(fn36) This broad interpretation was embodied in the trial court's jury instructions, which instructed that "[t]o act 'corruptly' . . . means to act deliberately for the purpose of improperly influencing, or obstructing, or interfering with the administration of justice."(fn37) The court held that § 1512 is not...