United States v. Doss
630 F.3d 1181 (2011)
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Rule of Law:
Non-coercive persuasion of a witness to exercise a valid legal testimonial privilege, such as the spousal testimonial privilege, does not constitute "corrupt persuasion" under the federal witness tampering statute, 18 U.S.C. § 1512(b). To be "corrupt," the persuasion must involve inherently wrongful conduct, such as bribery, threats, or suborning perjury, not merely a self-interested motive to hinder an investigation.
Facts:
- Juan Rico Doss was involved in sex trafficking of children, along with his wife, Jacquay Ford.
- During Doss's first trial for these offenses, a minor victim, C.F., was called as a witness but refused to testify.
- Between his first and second trials, while both he and his wife were in custody, Doss wrote several letters to Ford.
- In the letters, Doss encouraged Ford to "hold strong" and refuse to testify against him at his upcoming trial, specifically referencing their status as husband and wife.
- At the time Doss wrote the letters, he was unaware that Ford had already entered into a cooperation agreement with the government.
- In a separate incident, Doss was transported in a van with the minor victim, C.F., and another inmate, Mark Cohn.
- During the transport, Doss told C.F. that "nobody talks" and repeatedly stated, "It's all Broham," referring to C.F.'s former pimp, in an attempt to influence her testimony.
Procedural Posture:
- Juan Rico Doss was indicted with his wife, Jacquay Ford, in the United States District Court for the Central District of California on charges of sex trafficking.
- Doss's first trial ended in a mistrial after the jury was unable to reach a verdict.
- A federal grand jury subsequently issued a superseding indictment, adding three charges of witness tampering against Doss.
- Doss filed motions to dismiss the witness tampering counts and to sever them from the original charges, both of which the district court denied.
- Following a second trial, a jury convicted Doss on the sex trafficking counts and two of the three witness tampering counts.
- The district court denied Doss's renewed motion for a judgment of acquittal.
- After a bench trial on a sentencing enhancement, the district court found Doss had a qualifying prior conviction and imposed a mandatory life sentence on several counts.
- Doss appealed his conviction and sentence to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a defendant "corruptly persuade" a witness under 18 U.S.C. § 1512(b) by encouraging that witness to exercise a valid legal privilege not to testify, such as the spousal testimonial privilege?
Opinions:
Majority - Hawkins
No, a defendant does not "corruptly persuade" a witness under 18 U.S.C. § 1512(b) merely by encouraging the witness to exercise a valid legal privilege not to testify. The court reasoned that the term "corruptly persuades" requires more than just an improper purpose, such as a defendant's self-interest in hindering an investigation. Adopting the Third Circuit's approach from United States v. Farrell and guided by the Supreme Court's dicta in Arthur Andersen LLP v. United States, the court held that making "corruptly" synonymous with the statute's existing intent requirement would render the word surplusage. The Arthur Andersen court noted that persuading someone to exercise a marital or Fifth Amendment privilege is not "inherently malign." Therefore, to be "corrupt," the persuasion must involve a "consciousness of wrongdoing" demonstrated through inherently wrongful acts like bribery, suborning perjury, or intimidation. Because the evidence showed Doss only appealed to his wife to exercise her legal marital privilege, his conviction on that count (Count 8) was reversed. However, his conviction for tampering with C.F. (Count 7) was affirmed, as the evidence supported the inference that he was attempting to persuade her to lie, which is clearly corrupt persuasion.
Analysis:
This decision aligns the Ninth Circuit with the Third Circuit in a circuit split over the meaning of "corruptly persuades" in the federal witness tampering statute, rejecting the broader "improper purpose" test used by the Second and Eleventh Circuits. It establishes a significant precedent that protects communications advising a witness of their legitimate testimonial privileges from criminal prosecution. This ruling provides a degree of a safe harbor for defendants, family members, and attorneys who discuss valid legal rights with potential witnesses, clarifying that the act of persuasion itself must be wrongful, not just the motive behind it. The case thus narrows the scope of § 1512(b) and requires the government to prove an element of inherent wrongdoing beyond a mere intent to obstruct justice.
