United States v. William Farrell
1997 U.S. App. LEXIS 26281, 1997 WL 587462, 126 F.3d 484 (1997)
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Rule of Law:
A noncoercive attempt to persuade a coconspirator, who possesses a Fifth Amendment right against self-incrimination, to refrain from volunteering information to federal investigators does not constitute 'corrupt persuasion' under the federal witness tampering statute, 18 U.S.C. § 1512(b)(3).
Facts:
- Beginning in June 1991, William Farrell, a truck driver for a meat rendering plant, began selling 10- to 25-pound bottom rounds from cans of scrap meat to the Bachetti Brothers Meat Market.
- Bachetti Brothers would then grind the meat and sell it to the public as hamburger.
- On February 13, 1992, investigators from the United States Department of Agriculture (USDA) videotaped Farrell delivering a barrel of meat to the Bachetti Brothers Market.
- A few days later, a USDA agent confronted Farrell with the videotape and asked for his cooperation in an investigation, which Farrell refused.
- The agent then showed the videotape to the owners of Bachetti Brothers, who agreed to cooperate with the investigation.
- Over the next few weeks, Farrell spoke with Louis Bachetti on six occasions, suggesting they 'stick together' and telling him they should both tell investigators the meat was for Farrell's dogs.
- In their final conversation, Farrell told Bachetti he planned to stick to the 'dog food' story and wanted Bachetti to do the same.
- Farrell concluded the conversation by stating, 'If you crucify me, I’ll have to turn around and crucify you,' which Bachetti interpreted as a threat that Farrell would implicate him if he cooperated with the USDA.
Procedural Posture:
- A second superseding indictment was returned charging William Farrell with conspiracy, sale of adulterated meat, and witness tampering under 18 U.S.C. § 1512(b)(3).
- In the U.S. District Court, Farrell pleaded guilty to the adulterated meat counts but opted for a bench trial on the witness tampering count.
- The district court found Farrell not guilty of using intimidation but found him guilty of attempting to 'corruptly persuade' Louis Bachetti to withhold information.
- The district court entered a verdict of guilty on the witness tampering count and sentenced Farrell.
- Farrell, as appellant, appealed his conviction on the witness tampering charge to the United States Court of Appeals for the Third Circuit, where the government was the appellee.
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Issue:
Does a noncoercive attempt by one coconspirator to persuade another coconspirator to withhold information from federal investigators, in accordance with the second coconspirator's Fifth Amendment right against self-incrimination, constitute 'corrupt persuasion' under the federal witness tampering statute, 18 U.S.C. § 1512(b)(3)?
Opinions:
Majority - Stapleton, Circuit Judge
No. A noncoercive attempt by a coconspirator to persuade another to exercise their Fifth Amendment right to remain silent and withhold information from investigators does not constitute 'corrupt persuasion' under 18 U.S.C. § 1512(b)(3). The court found the phrase 'corruptly persuades' ambiguous. To give meaning to the word 'corruptly' and avoid rendering it surplusage, the court reasoned it must require more culpability than simply persuading someone with the intent to hinder an investigation, which is already an element of the offense. While bribing a witness or persuading them to lie would qualify as corrupt, persuading a coconspirator to exercise their valid Fifth Amendment right, without coercion or bribery, does not meet this higher culpability standard. The court declined to adopt the 'improper purpose' test from the obstruction of justice statute (§ 1503) because, unlike § 1503, § 1512 already contains explicit intent requirements. Finally, the court invoked the rule of lenity, stating that any ambiguity in a criminal statute must be resolved in favor of the defendant.
Dissenting - Campbell, Senior Circuit Judge
Yes. An attempt by a coconspirator to persuade another to withhold information from investigators, when motivated by the improper purpose of protecting oneself, does constitute 'corrupt persuasion' under 18 U.S.C. § 1512(b)(3). The dissent argued that 'corruptly' should be interpreted to mean 'motivated by an improper purpose,' a definition well-established under the related obstruction of justice statute, § 1503. The legislative history suggests Congress intended this meaning to carry over to § 1512. Farrell's motive was purely self-serving—to shield himself from prosecution—which is an improper purpose. The fact that Bachetti had a personal Fifth Amendment right to remain silent is irrelevant; that right cannot be used to protect the criminal behavior of Farrell, who induced him to invoke it for Farrell's own benefit.
Analysis:
This decision narrows the scope of the federal witness tampering statute by creating a distinction between different types of persuasion. It carves out a safe harbor for coconspirators to discuss legal strategy and encourage each other to remain silent, distinguishing this from illegal acts like bribery or suborning perjury. The court's refusal to import the 'improper purpose' test from § 1503 creates a potential circuit split and complicates the interpretation of 'corruptly' across federal obstruction statutes. This holding makes it more difficult for prosecutors to charge witness tampering when a defendant merely encourages a potential witness with a Fifth Amendment privilege to not cooperate with an investigation.
