Wednesday, January 6, 2002
Coercion Not Essential Element of Witness Tampering Charge—Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
Federal law does not require prosecutors to prove coercion in order to convict a defendant of witness tampering, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel upheld the conviction of an Orange County woman sentenced to 21 months in prison for, among other things, asking two parents whose children she had babysat for—one of them a deputy district attorney—to lie to investigators and deny that the defendant was paid for her services.
Fatemeh Khatami was arrested after authorities discovered that she had earned money as a babysitter and substitute teacher, and from rental property, while collecting Social Security disability benefits.
Khatami didn’t challenge her convictions on multiple counts of theft of benefits, failing to disclose information required by Social Security, and making false statements to obtain benefits. But she did appeal on two counts of violating 18 U.S.C. § 1512(b)(3).
The section prescribes a sentence of up to 10 years in prison for anyone who, among other things, “corruptly persuades another person, or attempts to do so...with intent to hinder, delay, or prevent the communication to a law enforcement officer...of information relating to the commission or possible commission of a Federal offense.”
The appellate panel rejected Khatami’s argument that because she didn’t tamper with witnesses because she hadn’t tried to coerce anyone into lying to investigators.
“We hold, in line with other circuits that have interpreted § 1512(b), that the ‘corruptly persuades’ language of the statute encompasses non-coercive attempts by a target of a criminal investigation to tamper with prospective witnesses,” Judge M. Margaret McKeown wrote for the court.
Khatami’s disability benefits were cancelled in 1997 after seven years, following an investigation by the Social Security Administration. About a year later, Khatami apparently learned that she might be prosecuted after an investigator spoke to her husband at the door of the family home.
The investigator identified the two neighbors, John Neighbours and Deputy District Attorney Colleen Crommett, for whom Khatami had performed babysitting services. Both acknowledged that they had paid Khatami for her services.
Crommett testified that after she spoke to the investigator, she received a call from Khatami asking her to tell the government that the two were “simply friends” and that Khatami had not been paid. Crommett said she told Khatami that she wouldn’t lie and that Khatami should not ask “anybody else to lie on her behalf.”
Neighbours gave similar testimony, saying that Khatami and her husband had both spoken to him on the telephone. While he did not recall their exact words, he said, “they did not want me to say anything.”
Khatami and her husband—who was also charged with witness tampering for attempting to dissuade Neighbours—were tried before U.S. District Judge David O. Carter. After a two-day bench trial, Seyed Khatami was acquitted but his wife was convicted on all 14 counts.
McKeown, writing for the Ninth Circuit, concluded that the prohibition of “corrupt persuasion” of witnesses was intended to contrast with other statutes prohibiting attempts to influence witnesses through intimidation, physical force, or threats.
“[O]ne does not need to be a regular viewer of ‘The Sopranos’ or other mass media depictions of criminal activity to understand that prospective witnesses who are affirmatively intimidated or threatened in advance of speaking with investigators may suffer dire consequences if they choose to talk,” the judge wrote.
But the ordinary meaning of “corrupt” and “persuade” indicate that the phrase “corruptly persuades” has a different connotation, the judge said. Prior Ninth Circuit cases have suggested, without definitively deciding, that there was no coercion requirement in the statute, and five other circuits have reached that conclusion, she said.
A “more difficult question,” McKeown cautioned, is “whether non-coercive attempts to persuade a witness not to disclose information to law enforcement officials or to decline to speak with law enforcement officials would run afoul of the statute.” But that question need not be answered to uphold Khatami’s conviction, the judge said, because trying to coax a witness into lying to authorities is clearly corrupt.
Senior Judges Betty B. Fletcher and Dorothy W. Nelson concurred.
The case is United States v. Khatami, 99-50700.
Copyright 2002, Metropolitan News Company