Case o' The Week: Mill on the Doss - Witness tampering and "reminding" of testimonial privilges

"I, the bride, take you, the groom, to be my husband, to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part, or until I am charged in a federal indictment and given an opportunity to cooperate against you to save my own skin."

In a moving tribute to the sanctity to marriage, the Ninth upholds a defendant's ability to remind his blushing bride of the marital privilege against testifying. United States v. Doss, 2011 WL 117628 (9th Cir. Jan. 14, 2011), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Davina Chen. Decision by Judge Hawkins, joined by Judges Berzon and Clifton.

Facts: Doss was tried for transporting minors for prostitution and for witness tampering (a violation of 18 U.S.C. § 1512). Id. at *1. Among other allegations, Doss was charged with attempting to persuade his wife to assert the marital privilege and to not testify. Id. Unfortunately, and unbeknownst to Doss, his wife was cooperating. She did not assert the privilege, she testified against him, and he was convicted at trial. Id. at *2-*3.

Doss moved before trial to dismiss the witness tampering counts for failure to state a violation of § 1512(b)(1), (2)(A); during trial he moved for acquittal on those counts on the same grounds. Id. at *3. Both motions were denied. Id. He was sentenced to life. Id.

Issue(s): “The issue before us is whether one can be convicted for witness tampering under 18 U.S.C. § 1512 by encouraging a witness to withhold testimony when that witness possesses a legal right or privilege not to testify.” Id. at *1. “The principal debate is over the meaning of the term, ‘corruptly persuades’ [another person with the intent to cause any person to withhold testimony, as set forth in § 1512(b)(1), (2)(A)].”Id. at *3. “Doss argues that there was nothing ‘corrupt’ about persuading his wife to exercise her marital privilege not to testify, and that therefore the district court should have granted his motion for acquittal.” Id. at *6.

Held: “We . . . conclude that the district court erred by failing to grant Doss’s motion for acquittal of Count 8 [relating to the assertion of the marital privilege]. . . . The evidence at trial established only that Doss appealed to his wife to exercise her marital privilege not to testify against him. As Doss’s wife, Ford had the legal option not to testify, and thus Doss’s request, without more, was insufficient to establish ‘corrupt’ as opposed to innocent persuasion.” Id. at *7.

Of Note: The Ninth Circuit falls on the right side of a circuit split on this issue. The Second and Eleventh have held that if a defendant encourages a witness to assert a lawful privilege against testifying, and does so with an evil heart, he or she is guilty of “corruptly persuading” under § 1512. Id. at *3. The Third, by contrast, requires something inherently wrongful about the persuasion – like bribery, or encouraging perjury. Id.

The panel agrees with the Third Circuit in a particularly well-written analysis. The strength of Judge Hawkin’s opinion may matter: our colleague Davina may be a reluctant white-quill recipient before the dust settles on the case.

How to Use: Doss isn’t limited to the marital privilege. Non-coercive attempts to convince a witness to assert the Fifth Amendment also fall outside of the scope of § 1512. Id. at *7. Unfortunately for Doss, he also encouraged the other witness (for whom the assertion of the Fifth was at issue) to lie. Id. “[N]on-coercive attempts to persuade a witness to lie are clearly covered by § 1512(b).” Id. Thus, under Doss a defendant can lawfully persuade a witness to assert the marital or Fifth Amendment privilege – but (not surprisingly) it remains a crime to suborn perjury. Id.

For Further Reading: After Doss our clients commit no crime if they attempt, without coercion, to persuade government witnesses to assert a lawful testimonial privilege. Does Doss mean that defense counsel can contact witnesses and encourage them to assert a privilege – with the goal of keeping them off the stand?

Maybe.

For example, the Fifth Circuit found “no impropriety” when defense counsel contacted a witness’s attorney, described the dangers of self-implication if the witness testified, and reminded the attorney of the Fifth Amendment. See McNeal v. Hollowell, 481 F.2d 1145, 1152 (5th Cir. 1973).

On the other hand, defense attorneys have been convicted for such advice (though admittedly with a bribe or two thrown in). And there’s a model ethical rule that prohibits unlawfully obstructing opposing counsel’s access to evidence. See ABA Model Rules of Prof'l Conduct R. 3.4(a). For a very helpful article on this murky ethical area, see Mark Mermelstein and Charlotte Decker, Walk the Line, Los Angeles Lawyer, available here.



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Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at wwwndcalfpd.org

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