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.” 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. 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. Unfortunately, courts apply different interpretations of § 1512(b), resulting in a troubling split among several of the federal circuit courts. 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. While the Second and Eleventh Circuits hold that such conduct is within the coverage of the statute, the Third Circuit holds that such conduct does not necessarily amount to witness tampering. The key issue is whether corrupt persuasion requires mere persuasion motivated by an improper purpose (such as self-interest in impeding an investigation) or persuasion that involves otherwise wrongful means (such as bribery or inducement to commit perjury). Most recently, the Ninth Circuit joined the Third Circuit in adopting a narrow interpretation of the corruptly persuades clause. 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. 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.
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),
92 Neb. L. Rev.
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