                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-1997

United States v. Farrell
Precedential or Non-Precedential:

Docket
96-1860




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Filed September 24, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-1860

UNITED STATES OF AMERICA

v.

WILLIAM FARRELL,
       Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal Action No. 95-cr-00453-1)

Argued May 6, 1997

BEFORE: STAPLETON, LEWIS and CAMPBELL,*
Circuit Judges

(Opinion Filed September 24, 1997)

       Michael R. Stiles
       U.S. Attorney
       Walter S. Batty, Jr.
       Assistant U.S. Attorney
       Thomas R. Perricone (Argued)
       Assistant U.S. Attorney

       Office of the U.S. Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106
        Attorneys for Appellee
_________________________________________________________________

* Honorable Levin H. Campbell, Senior United States Circuit Judge for
the First Circuit, sitting by designation.




       Peter Goldberger (Argued)
       Jan Armon
       50 Rittenhouse Place
       Ardmore, PA 19003
        Attorneys for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:
This case requires us to interpret the phrase "corruptly
persuades" in the federal witness tampering statute. That
statute makes it a crime to attempt to "corruptly persuade"
someone in order to "hinder, delay, or prevent the
communication to a law enforcement officer or judge of the
United States of information relating to the commission or
possible commission of a Federal offense." 18 U.S.C.
S 1512(b)(3). William Farrell was convicted under the
statute for attempting to dissuade a coconspirator from
providing information to investigators of the United States
Department of Agriculture (USDA) about Farrell's
involvement in a conspiracy to commit the federal offense of
selling adulterated meat. Farrell appeals his conviction on
the ground that the conduct for which he was convicted did
not constitute "corrupt persuasion" within the meaning of
the statute. We agree and accordingly will reverse Farrell's
conviction and remand for further proceedings consistent
with this opinion.

I.

Before his arrest, Farrell drove a truck for a meat
rendering plant. His job required him to pick up scraps and
sweepings from various meat markets and deliver them to
his employer's meat rendering facility for conversion into
non-food products. Beginning in June 1991, Farrell began
removing 10- to 25-pound bottom rounds from the cans of
scrap and waste he had retrieved and selling the meat to
the Bachetti Brothers Meat Market for 50c per pound.
Bachetti Brothers would then grind up the meat and sell it
to the public as hamburger.

                                2



On February 13, 1992, USDA investigators videotaped
Farrell carrying a barrel of meat from the back of his truck
into the Bachetti Brothers Market. A few days later, USDA
Agent James Zacher confronted Farrell and showed him the
videotape. Agent Zacher asked Farrell if he would cooperate
with a USDA investigation into Bachetti Brothers by
wearing a body wire, but Farrell denied any wrongdoing
and refused to cooperate. Agent Zacher then went to
Bachetti Brothers and showed the videotape to Louis
Bachetti, the market's manager, and his mother, Rose, who
owned the market. Within a week, the Bachetti family had
decided to cooperate with the investigation. In exchange for
their cooperation, the USDA did not charge anyone who
owned or worked at Bachetti Brothers with a crime.1

After Agent Zacher showed him the videotape, Farrell
spoke with Louis Bachetti about the USDA investigation on
six occasions. On February 19, 1992, Farrell called
Bachetti and told him about the videotape, but insisted
that he did not know what the agents were talking about.
Later that day, Farrell called Bachetti a second time and
asked him if he had seen the tape and what he had told the
agents. Bachetti told Farrell that he had told the agents
nothing. Less than a week later, Farrell went to Bachetti
Brothers and told Bachetti that they would be okay if they
"stuck together." Shortly thereafter, Bachetti called Farrell
and told him that he was going to cooperate with the
USDA, but Farrell denied knowing what Bachetti was
talking about. A few days later, Farrell called Bachetti and
told him that he was going to admit to the USDA agents
that he was bringing meat into Bachetti Brothers, but he
was going to say that he was keeping the meat for his dogs.
Farrell suggested that he and Bachetti "stick together" on
the story about the meat being for Farrell's dogs. Finally, in
early March 1992, Farrell approached Bachetti in the
Bachetti Brothers parking lot and told him that he planned
to stick to the story about the meat being for his dogs, and
that he wanted Bachetti to do the same. Farrell then said
to Bachetti, "If you crucify me, I'll have to turn around and
crucify you." Bachetti and the district court interpreted this
_________________________________________________________________

1. The Bachetti Brothers corporation was indicted and pleaded guilty to
selling adulterated meat and will be subject to a fine.

                                3



statement to mean that if Bachetti cooperated with the
USDA and told the agents about Farrell's involvement in
selling adulterated meat, Farrell would tell the agents what
he knew about Bachetti's illegal activities.

Farrell was indicted on one count of selling adulterated
meat on August 24, 1995 and was arrested a few weeks
later. After Farrell filed pretrial motions, a superseding
indictment was returned adding a count of tampering with
a witness. A second superseding indictment, returned on
January 16, 1996, charged Farrell with conspiracy to sell
adulterated meat, sale of adulterated meat, and tampering
with a witness. On June 24, 1996, Farrell pleaded guilty to
the adulterated meat counts, but chose to go forward with
a bench trial on the witness tampering count.

The witness tampering count alleged that Farrell had
violated 18 U.S.C. S 1512(b)(3) by using intimidation and
attempting corruptly to persuade Louis Bachetti to withhold
information from or provide false information to agents of
the USDA with the intent to hinder, delay or prevent
communication by Bachetti to USDA agents of information
relating to the commission or possible commission of a
federal offense, the sale of adulterated meat. After the
bench trial, the district court "conclude[d] that under the
evidence, Mr. Farrell did attempt to persuade Louis
Bachetti to withhold information, with the requisite intent
to [delay], hinder, o[r] prevent communication by Bachetti
to a Federal law officer." App. at 98. The court further
found that "what was meant [by Farrell's `I'll have to crucify
you' comment] was that if you tell the Government, I'll tell
the Government what I know about you." App. at 100. The
district court entered a verdict of guilty on the witness
tampering count and filed a Bench Trial Memorandum. The
Memorandum included findings that (1) Farrell "did not
knowingly use intimidation" to try to prevent Bachetti's
communication with USDA agents and (2) Farrell "did
attempt corruptly to persuade Louis Bachetti to withhold
information from agents of the [USDA] with the intent to
hinder, delay, or prevent the communication of information
relating to the commission or possible commission of a
Federal offense." Bench Trial Memo. at 1 (emphasis added).
The court sentenced Farrell to 12 months and 1 day of
imprisonment and a $3,000 fine.

                                4



Farrell appeals his conviction on the witness tampering
charge. He does not dispute the district court's factual
findings, but contends that those findings and the
supporting evidence do not establish that he committed the
crime of witness tampering through "corrupt persuasion"
because the "corruptly persuades" clause of the witness
tampering statute does not apply to an attempt to persuade
a coconspirator not to disclose information about the
conspiracy to federal investigators.

II.

The federal witness tampering statute makes it unlawful
for any person to:

       knowingly use[ ] intimidation or physical force,
       threaten[ ], or corruptly persuade[ ] another person, or
       attempt[ ] to do so, or engage[ ] in misleading conduct
       toward another person, with intent to--

       * * *

        (3) hinder, delay, or prevent the communication to a
       law enforcement officer or judge of the United States of
       information relating to the commission or possible
       commission of a Federal offense ...
18 U.S.C. S 1512(b)(3). The statute does not define
"corruptly persuades," but does explain that "the term
`corruptly persuades' does not include conduct which would
be misleading conduct but for a lack of a state of mind." 18
U.S.C. S 1515(a)(6). This explanation is irrelevant here,
however, because Farrell does not dispute that he
possessed the requisite intent to prevent Bachetti from
communicating with the USDA investigators and the
government does not contend that Farrell engaged in any
"misleading conduct" with respect to Bachetti.

Without any definitional assistance, we find the phrase
"corruptly persuades" to be ambiguous. We agree with
Farrell that the phrase cannot mean simply "persuades
with the intent to hinder communication to law
enforcement" because such an interpretation would render
the word "corruptly" meaningless. The Supreme Court has
cautioned that courts should give meaning to all statutory

                                5



terms, especially those that "describe an element of a
criminal offense." Ratzlaf v. United States, 510 U.S. 135,
141 (1994) (holding that "willfully," in the context of a
statute criminalizing the "willful" violation of the prohibition
on structuring cash transactions to avoid bank reporting
laws, must be read as imposing an additional element of
intent, i.e., knowledge of the unlawfulness of such
structuring (as opposed to just knowledge of the reporting
laws and intent to avoid them)). However, what meaning
should be attributed to the word "corruptly" is not apparent
from the face of the statute.2

Nor does the legislative history provide us with much
assistance in construing "corruptly" to determine what
conduct Congress intended the "corruptly persuades"
clause to proscribe. In a Report discussing the amendment
adding the "corruptly persuades" clause to the witness
tampering statute, the House Judiciary Committee noted
that original S 1512(b) did not criminalize "noncoercive
conduct that does not fall within the definition of
`misleading conduct,' " and explained that the addition of
the "corruptly persuades" clause "amend[ed] 18 U.S.C.
S 1512(b) to proscribe `corrupt persuasion.' It is intended
that culpable conduct that is not coercive or `misleading
conduct' be prosecuted under 18 U.S.C. S 1512(b)." H.R.
Rep. No. 100-169, at 12 (1987). No explanation of what is
meant by "culpable conduct" is provided. The Report does
cite, as an example of "culpable corrupt persuasion" that
would be punishable under amended S 1512(b), a case
involving a defendant who both offered to rewardfinancially
a coconspirator's silence and attempted to persuade the
_________________________________________________________________

2. The word "corruptly" has several different meanings. Its root, the
adjective "corrupt," is defined as "morally degenerate and perverted" and
"characterized by improper conduct (as bribery or the selling of favors)."
Webster's Ninth New Collegiate Dictionary 294 (1985). The verb "corrupt"
has both transitive, as "to change [someone] from good to bad in morals,
manners, or actions; ... bribe," and intransitive, as "to become [oneself]
morally debased," meanings. Id. at 293. Given these definitions,
"corruptly" in S 1512(b) may modify "persuades" to require persuasion
through some corrupt means, persuasion of someone to engage in some
corrupt conduct, and/or persuasion characterized by some "morally
debased" purpose.

                                6



coconspirator to lie to law enforcement officials about the
defendant's involvement in the conspiracy. See id. at 12 &
n.25 (citing United States v. King, 762 F.2d 232, 236-37 (2d
Cir. 1985)). One court, apparently relying on this citation,
has opined that Congress intended the amendment to
expand S 1512(b) "to encompass cases where the defendant
`corruptly persuades' the witness to testify falsely." United
States v. Kulczyk, 931 F.2d 542, 546 n.7 (9th Cir. 1991).
We think, however, that the better interpretation of the
Report's citation to King is that Congress viewed both types
of persuasion in which the King defendant engaged as
sufficiently "culpable" or "corrupt" to fall within the
proscription of S 1512(b).

Thus, we are confident that both attempting to bribe
someone to withhold information and attempting to
persuade someone to provide false information to federal
investigators constitute "corrupt persuasion" punishable
under S 1512(b). Nonetheless, we are hesitant to define in
more abstract terms the boundaries of the conduct
punishable under the somewhat ambiguous "corruptly
persuades" clause. However, we do not think it necessary to
provide such a definition here because we are similarly
confident that the "culpable conduct" that violates
S 1512(b)(3)'s "corruptly persuades" clause does not include
a noncoercive attempt to persuade a coconspirator who
enjoys a Fifth Amendment right not to disclose self-
incriminating information about the conspiracy to refrain,
in accordance with that right, from volunteering
information to investigators.

We recognize that the prototypical situation in which an
individual may attempt to persuade a coconspirator to
exercise his Fifth Amendment right, i.e., that in which an
attorney advises a client not to reveal information about his
participation in a conspiracy to law enforcement officials, is
expressly excluded from the reach of the statute. See 18
U.S.C. S 1515(c) ("This chapter does not prohibit or punish
the providing of lawful, bona fide, legal representation
services in connection with or anticipation of an official
proceeding."). However, we do not think that the attorney-
client situation constitutes the only type of noncoercive
persuasion to withhold information that falls outside the
purview of S 1512(b)(3).

                                7



A participant in a conspiracy clearly has a right under
the Fifth Amendment not to provide law enforcement
officials with information about the conspiracy that will
incriminate him. See, e.g., United States v. Plescia, 48 F.3d
1452, 1464 (7th Cir. 1995); In re Grand Jury (Markowitz),
603 F.2d 469, 473-74 (3d Cir. 1979); United States v.
Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973). Here, where
the conspiracy arose from a bilateral commercial
relationship in which Farrell sold and Bachetti bought
adulterated meat, a disclosure by Bachetti of Farrell's
conduct in connection with the conspiracy would
necessarily implicate Bachetti as a participant in the
conspiracy as well. Thus, Bachetti had a Fifth Amendment
right not to disclose information to USDA investigators
about his or Farrell's conduct in connection with the
adulterated meat. The evidence indicates--and the district
court found--that Farrell attempted to persuade Bachetti to
exercise that right by refraining from revealing information
about the adulterated meat transactions to the
investigators. The district court expressly found that Farrell
did not employ coercive methods in his efforts to dissuade
Bachetti from cooperating with the USDA. Likewise there
was no evidence that Farrell engaged in "corrupt" methods
such as bribery.

We read the inclusion of "corruptly" in S 1512(b) as
necessarily implying that an individual can "persuade"
another not to disclose information to a law enforcement
official with the intent of hindering an investigation without
violating the statute, i.e., without doing so "corruptly."
Thus, more culpability is required for a statutory violation
than that involved in the act of attempting to discourage
disclosure in order to hinder an investigation. Because we
find no basis in the district court's findings on which to
conclude that more culpability existed here,3 we believe that
_________________________________________________________________

3. In the absence of a privilege, society has the right to the information
of citizens regarding the commission of crime, and it can be argued that
discouraging another who possessed no privilege from honoring this civic
duty involves some culpability not present when coconspirators with
Fifth Amendment privileges converse. For this reason, we express no
opinion on the applicability of S 1512(b)(3) to efforts to dissuade
someone
who is not a participant in a conspiracy, and accordingly has no Fifth

                                8



under the most plausible reading of S 1512(b), the conduct
in which Farrell was found to have engaged did not
constitute "corrupt persuasion." Even if we did not find this
the most reasonable reading, however, we would
nevertheless find that it is a permissible one and that the
rule of lenity requires its adoption in this case. See United
States v. Turcks, 41 F.3d 893, 901 (3d Cir. 1994)("The rule
of lenity `demands resolution of ambiguities in criminal
statutes in favor of the defendant.' ")(quoting Hughey v.
United States, 495 U.S. 411, 422 (1990)); United States v.
Pollen, 978 F.2d 78, 85 (3d Cir. 1992)("Under th[e] rule [of
lenity], when ambiguity in a criminal statute cannot be
clarified by either its legislative history or inferences drawn
from the overall statutory scheme, the ambiguity is resolved
in favor of the defendant.").

The government asks us to rely on cases construing the
term "corruptly" in the context of the statute prohibiting the
obstruction of justice generally, see 18 U.S.C. SS 1503,4 to
hold that the "corruptly persuades" clause proscribes all
persuasion that is "motivated by an improper purpose."5
_________________________________________________________________

Amendment right, not to reveal information about the conspiracy to
federal law enforcement officials. Our opinion addresses only the
situation in which the subject of a federal investigation attempts to
persuade one who has also participated in the conduct under
investigation not to disclose information about that conduct to federal
investigators.

4. Section 1503(a) provides:

       Whoever corruptly, or by threats or force, or by any threatening
       letter or communication, endeavors to influence, intimidate, or
       impede any grand or petit juror, or officer in or of any court of
the
       United States, ... or corruptly, or by threats or force, or by any
       threatening letter or communication, influences, obstructs, or
       impedes, or endeavors to influence, obstruct, or impede, the due
       administration or justice, shall be punished ....

5. The government contends that Farrell's "improper purpose" here was
the prevention of Bachetti's communication of information about the
conspiracy to sell adulterated meat to USDA investigators. As we have
already discussed, however, such a purpose is already an element of the
crime with which Farrell was charged and Congress's inclusion of the
word corruptly in S 1512(b)(3) dictates that more than such a purpose is
required.

                                9



Appellee's Br. at 14-15. The government cites United States
v. Thompson, in which the appellant argued thatS 1512(b)
was unconstitutionally vague. 76 F.3d 442 (2d Cir. 1996).
The Thompson court rejected the appellant's challenge,
relying on cases construing "corruptly" in S 1503 to mean
"motivated by an improper purpose" in order to give
meaning to "corruptly persuades" in S 1512(b). Id. at 452.
We decline to follow the Thompson approach because we do
not find the use of "corruptly" in S 1503 sufficiently
analogous to its use in S 1512(b)'s "corruptly persuades"
clause to justify construing the terms identically. As the
government recognizes, apparently without appreciating its
significance, "corruptly" has consistently been interpreted
to provide the intent element of the general obstruction of
justice offense defined in S 1503. See , e.g., United States v.
Barfield, 999 F.2d 1520, 1524 (11th Cir. 1993); United
States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992);
United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1979).
This interpretation of "corruptly" in S 1503 is entirely
appropriate given the structure of that statute, which
broadly prohibits "corruptly ... influenc[ing], obstruct[ing] or
imped[ing], or endeavor[ing] to influence, obstruct, or
impede, the due administration of justice." Indeed, if
"corruptly" were not so construed in S 1503, the statute
would have no element of mens rea. In S 1512(b), however,
both "knowing" conduct and some specific intent, described
in subsections (1) through (3),6 are expressly required.
Thus, because the "improper purposes" that justify the
application of S 1512(b) are already expressly described in
the statute, construing "corruptly" to mean merely "for an
improper purpose" (including those described in the
statute) renders the term surplusage, a result that we have
been admonished to avoid. See Ratzlaf, 510 U.S. at 141.7
_________________________________________________________________

6. Subsections (1) and (2) of S 1512(b) prohibit intimidating, corruptly
persuading, or engaging in misleading conduct toward any person with
the intent to (1) influence, delay, or prevent testimony in an official
proceeding or (2) cause any person to withhold testimony, destroy or
mutilate evidence, evade legal process summoning testimony or evidence,
or be absent from an official proceeding to which the person has been
summoned by legal process.

7. For similar reasons, we also do not, as urged by Farrell, look to cases
interpreting "corruptly" in 28 U.S.C. S 7212 to guide our interpretation
of
the term in S 1512(b). Section 7212 provides:

                                 10



Accordingly, the cases interpreting "corruptly" in S 1503 do
not compel us to alter our conclusion that Farrell's attempt
to persuade his coconspirator not to reveal information
about the conspiracy did not constitute a violation of
S 1512(b)(3).

III.

The government suggests that even if we conclude that
an attempt to persuade a coconspirator not to reveal
information about the conspiracy to federal law
enforcement officials is not proscribed by the "corruptly
persuades" clause of S 1512(b), we should still affirm
Farrell's conviction on the ground that the evidence of
record indicates that Farrell violated S 1512(b)(3) by
attempting to persuade Bachetti to lie to USDA
investigators about what Farrell was doing when he was
captured on the USDA investigators' videotape. We decline
to accept the government's suggestion.

The indictment alleged that Farrell "did knowingly and
unlawfully use intimidation and did attempt corruptly to
persuade Louis Bachetti to withhold information from or
provide false information to agents of the Department of
Agriculture with intent to hinder, delay, or prevent the
communication by Louis Bachetti to a United States law
enforcement officer of information relating to the
commission of a Federal offense, that is, the sale and
distribution of adulterated meat." App. at 13. Thus, the
_________________________________________________________________

        Whoever corruptly or by force or threats of force (including any
        threatening letter or communication) endeavors to intimidate or
        impede any officer or employee of the United States acting in an
        official capacity under this title, or in any other way corruptly
or by
        force or threats of force (including any threatening letter or
        communication) obstructs or impedes, or endeavors to obstruct or
        impede, the due administration of this title, shall[be punished].

As in S 1503, the term "corruptly" provides the intent element of S 7212.
Although some cases have interpreted S 7212's intent element more
narrowly than S 1503's, see, e.g., United States v. Reeves, 752 F.2d 995
(5th Cir. 1985), we do not rely on those cases because they interpret the
term "corruptly" in a different statutory context than S 1512(b).

                                 11
indictment presented four theories of Farrell's alleged
violation of S 1512(b)(3): (1) intimidation to withhold
information; (2) intimidation to provide false information;
(3) corrupt persuasion to withhold information; and (4)
corrupt persuasion to provide false information. The district
court expressly found that Farrell "did not knowingly use
intimidation in regard to the communication by Louis
Bachetti," thus rejecting the first two theories. Bench Trial
Memo. at 1 (emphasis added). The court found that Farrell
did attempt corruptly to persuade Bachetti to "withhold
information" from USDA investigators, but it made no
finding on the fourth theory, i.e., whether Farrell attempted
corruptly to persuade Bachetti to provide false information
to USDA investigators.

Despite the district court's failure to make a finding on
the "persuasion to lie" theory, the government argues that
we should affirm Farrell's conviction on the basis of that
theory because there is sufficient evidence in the record to
support it. We decline, however, to affirm Farrell's
conviction on the basis of a theory that the judge in the
bench trial did not resolve one way or the other. Although
it is proper for an appellate court to imply findings of fact
that support a general finding of guilt in a non-jury trial
where the evidence so warrants and the defendant has not
requested special findings under Fed. R. Crim. P. 23(c), see,
e.g., United States v. Powell, 973 F.2d 885, 889 (10th Cir.
1992); United States v. Musser, 873 F.2d 1513, 1519 (D.C.
Cir. 1989), we have found no case suggesting that we can
imply findings of fact relevant to a theory not addressed by
the trial court, but irrelevant to the theory on which it
predicated its ultimate finding of guilt. Cf. McCormick v.
United States, 500 U.S. 257, 270 n.8 (1991) ("Appellate
courts are not permitted to affirm convictions on any theory
they please simply because the facts necessary to support
the theory have been presented to the jury."); Chiarella v.
United States, 445 U.S. 222, 236 (1980) ("[W]e cannot
affirm a criminal conviction on the basis of a theory not
presented to the jury."). Although McCormick and Chiarella
were tried to juries and the rationale underlying them was
the defendant's constitutional right to have a jury decide
his guilt in the first instance, we find them persuasive here.
Farrell had a right, akin to the right to a jury determination

                                12



of guilt, to have factfinding underlying his conviction
performed by the court that heard all the testimony and
saw all the evidence relevant to his case in thefirst
instance. Accordingly, we will not independently review the
record before us and attempt to assess the evidence
relevant to an alternative theory, not passed upon by the
court below, upon which to uphold a conviction that we
have found to be erroneous on the theory put forth by the
district court.

We agree with the government, however, that there is
evidence in the record which, if credited, would support its
alternative theory. In these circumstances, we conclude
that the appropriate course is to reverse the judgment of
conviction and remand to provide an opportunity for the
district judge who tried this case to review the existing
record and make additional findings of fact. Cf. United
States v. Livingston, 459 F.2d 797, 798 (3d Cir. 1972)(en
banc)(remanding for findings of fact by district judge who
had conducted a bench trial in a criminal case). If the court
finds that Farrell attempted to persuade Bachetti to lie to
the USDA investigators, it may reinstate the verdict of
guilty on count three. If it finds to the contrary, it should
enter a not guilty verdict on that count and resentence on
the remaining counts. If, for any reason, the district judge
is unable at this point to make a factual finding on this
issue, the court should enter a not guilty verdict on count
three and resentence on the remaining counts.

IV.

We will reverse Farrell's conviction for tampering with a
witness and remand for further proceedings consistent with
this opinion.

                                13



CAMPBELL, Senior Circuit Judge (Dissenting).

As I believe that Farrell attempted "corruptly to persuade"
his co-conspirator, Bachetti, to withhold incriminating
information from law enforcement authorities, I would
affirm his conviction under 18 U.S.C. S 1512(b)(3) for
witness-tampering. Both the legislative history ofS 1512
and the relevant case law support the government's
position that S 1512's "corruptly persuade" language means
the same as the similar "corruptly" language in S 1503, a
related statute, namely, persuasion that is motivated by an
improper purpose. I do not agree with the majority that
applying the "improper purpose" test to S 1512 leads to
statutory redundancy. Nor do I agree that simply because
Bachetti would have had a Fifth Amendment right to
remain silent, Farrell's attempt to persuade him to remain
silent, in order to shelter Farrell, was proper. I, therefore,
respectfully dissent.
1. History and Construction of Section 1512

Section 1512 was enacted in 1982 to replace and expand
witness protection provisions that had earlier been
incorporated in 18 U.S.C. S 1503, the obstruction of justice
statute. While S 1512 took over the area of witness
protection, S 1503 continued to protect jurors and court
officers against intimidation and corrupt influence, as well
as to punish other obstructions of justice. Thus S 1503
punished, and continues to punish, anyone who "corruptly
. . . endeavors to influence, intimidate, or impede any . . .
juror, or [federal court] officer" or otherwise "corruptly" to
influence or obstruct the administration of justice.

Section 1512's "corrupt persuasion" language, the
language here in issue, was inserted by Congress in 1988.
The amendment appeared in the Anti-Drug Abuse Act of
1988 (ADAA), Pub. L. No. 100-690, 102 Stat. 4181. Senator
Biden, the ranking minority member of the Judiciary
Committee and the Senator who had taken the lead in
drafting the criminal provisions of the ADAA, stated that
the intention of the 1988 Amendments was "merely to
include in section 1512 the same protection of witnesses
from non-coercive influence that was (and is) found in
section 1503." 124 CONG. REC. S17300 (daily ed. Oct. 21,

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1988) (statement of Senator Biden). At this time, Congress
would have been aware of the judicial precedent that had
developed around the "corruptly" language inS 1503.
Senator Biden and his legislative colleagues would have
known that courts, in construing S 1503, had defined
"corruptly" as meaning "motivated by an improper
purpose." See e.g., United States v. Cintolo, 818 F.2d 980,
990-91 (1st Cir. 1987); United States v. Fasolino, 586 F.2d
939, 941 (2d Cir. 1978); Martin v. United States, 166 F.2d
76, 79 (4th Cir. 1948) (approving a jury instruction that
defined "corruptly" as "with an improper motive").

Given this background, it is logical to attribute to the
"corruptly persuade" language in S 1512, as adopted by
Congress in 1988, the same well-established meaning
already attributed by the courts to the comparable
language in S 1503, i.e. "motivated by an improper
purpose." This is what was concluded by the Second
Circuit, the only court of appeals to have so far interpreted
this aspect of S 1512. The Second Circuit translated the
"improper purpose" standard from S 1503 to S 1512. United
States v. Thompson, 76 F.3d 442 (2d Cir. 1996). The
Second Circuit's interpretation fits well within Senator
Biden's statement, since it includes within S 1512
protection from non-coercive conduct analogous to that
embraced within S 1503.

I cannot agree, therefore, with the majority's assertion
that the legislative history does not provide "much
assistance" in construing the "corruptly persuade" language
in issue. Senator Biden's statement coupled with the fact
that the witness-tampering provision of S 1512 evolved from
S 1503, is strong evidence that Congress intended
"corruptly persuade" in S 1512 to be construed in much the
same manner as courts have construed similar phraseology
in S 1503.

2. Adopting the "Improper Purpose" Test for Section 1512
       does not Lead to Statutory Redundancy

The majority declines to follow the Second Circuit in
Thompson because of its view that the disparate structures
of the two statutes make such translation inappropriate.
They state that the term "corruptly" provides the only intent

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element of S 1503, whereas S 1512 contains explicit general
and specific intent elements in addition to the term
"corruptly." According to the majority, "construing
`corruptly' to mean merely `for an improper purpose'
(including those described in the statute) renders the term
surplusage." Majority Op., at p. 10, citing Ratzlaf v. United
States, 510 U.S. 135, 141 (1994).

However, interpreting "corruptly" to mean "motivated by
an improper purpose" does not create statutory
redundancy. It is true that many courts have loosely
declared that the term "corruptly" in S 1503 "does not
superimpose a special and additional element on the
offense," United States v. Ogle, 613 F.2d 233, 239 (10th Cir.
1979), but rather includes any act "done with the purpose
of obstructing justice," United States v. Rasheed, 663 F.2d
843, 852 (9th Cir. 1981). But such broad statements
overlook that not all actions taken with the intent to hinder
or obstruct justice necessarily violate S 1503 or S 1512. In
such instances, the term "corruptly" can play an important
role in limiting the reach of the statutes. For example, a
mother urging her son, in his own interest, to claim his
Fifth Amendment right to remain silent would hardly be
acting "corruptly," that is, with an improper purpose. A
newspaper attacking a particular prosecutor as going too
far, or an altruistic citizen writing a letter to the prosecutor
or the judge seeking clemency for the accused -- would be
other examples where the corruption requirement, i.e.,
improper purpose, would limit prosecutions under both
statutes.

In United State v. Thompson, the court of appeals rejected
the argument that by criminalizing corrupt persuasion,
S 1512 violated Thompson's free speech rights. The court
held that "[a] prohibition against corrupt acts `is clearly
limited to . . . constitutionally unprotected and purportedly
illicit activity.' " Thompson, 76 F.3d at 452 (quoting United
States v. Jeter, 775 F.2d 670, 679 (6th Cir. 1985)
(construing 18 U.S.C. S 1503 (1982)). See United States v.
Fasolino, 449 F. Supp. 586 (W.D.N.Y.), aff'd, 586 F.2d 939
(2d Cir. 1978) (non-corrupt endeavors to influence a jurist
do not violate S 1503). Because S 1512 does not prevent
innocent conduct nor "lawful or constitutionally protected

                                16



speech," id., even if such conduct or speech has the effect
of hindering an investigation, the term "corruptly" adds an
important dimension to S 1512.

I, therefore, disagree with the majority's contention that
to construe "corruptly" as meaning "with an improper
purpose," simply duplicates the intent element already
present in S 1512. "Corruptly" indicates that persuasion of
another which is intended to hinder, delay or prevent
communications to a law enforcement officer or judge is
criminal only if the dimension of improper purpose can also
be found.1

3. Farrell's Purpose when he Attempted to Prevent Bachetti
   from Communicating with Investigators was Improper

The majority declares that Farrell lacked the degree of
culpability necessary to violate S 1512. The majority
believes that Farrell's actions were not corrupt because
Farrell was merely urging Bachetti to avail himself of his
constitutional right against self-incrimination. The majority
apparently sees Farrell's own interest in Bachetti's
constitutional privilege as outweighing the right of society
to "the information of citizens regarding the commission of
a crime." Majority Op., at p. 8 n.3.

Bachetti could, indeed, have invoked his Fifth
Amendment right and refused to cooperate with the
investigation in order to protect himself. But nothing in this
principle implies that Farrell is constitutionally entitled to
try to persuade Bachetti to take the Fifth Amendment in
order to protect Farrell himself. To the contrary, courts that
have faced this issue have decided the other way,finding
that behavior similar to Farrell's violates S 1503. For
_________________________________________________________________
1. To be sure, "improper purpose" may not always be self-defining, and
may require further analysis in some situations. One who withholds
evidence of tax evasion in order to avoid supporting governmental
policies he dislikes may (incorrectly) claim to have acted properly
because of the purported purity of his motive. A newspaper that
challenges a criminal prosecution may, in the eyes of some, be acting
with an improper purpose, yet may still be protected by the First
Amendment. Nonetheless, the fact that the meaning of "improper
purpose" is not always utterly clear does not eliminate its utility in
helping further define and limit the thrust of the statute.

                                17



example, in United States v. Cioffi, 493 F.2d 1111 (2d Cir.
1974), the defendant insisted that merely advising a
witness to plead the Fifth Amendment could not constitute
an obstruction of justice. The Second Circuit disagreed.
Affirming a district court jury instruction, the court found
that "one who . . . advises with corrupt motive a witness to
take [the Fifth Amendment], can and does obstruct or
influence the administration of justice." Id. at 1119. The
court added that "[t]he lawful behavior of the person
invoking the Amendment cannot be used to protect the
criminal behavior of the inducer." Id.

Similarly, in Cole v. United States, 329 F.2d 437 (9th Cir.
1964), a Ninth Circuit case that interpreted the oldS 1503,
the court noted that even an innocent act, such as claiming
Fifth Amendment protection, "may make another a criminal
who sees that the innocent act is accomplished for a
corrupt purpose." Id. at 439-40. The court affirmed a jury
finding that the defendant, who had advised several
individuals to take the Fifth Amendment, illegally
obstructed justice because his advice was given in order to
benefit himself.

Nor does the fact that Farrell and Bachetti were co-
conspirators affect this analysis. The court in United States
v. Cortese, 568 F. Supp. 119 (M.D. Pa. 1983), faced a
situation quite similar to Farrell. In Cortese, one
coconspirator had claimed his Fifth Amendment privilege
against self-incrimination before a grand jury. After
declaring that the Fifth Amendment privilege is a "personal
one," the court found that liability could attach if "a co-
conspirator can be shown by . . . corrupt motive to have
induced his ally to invoke the [Fifth Amendment] privilege."
Id. at 129.

Farrell's purpose in the present matter was improper: he
sought to induce Bachetti to withhold information regarding
the commission of a crime in order to shield Farrell himself
from an honest investigation of what had occurred. Such
self-interested behavior constitutes corrupt persuasion
because it is "motivated by an improper purpose," i.e. a
purpose different from Bachetti's personal constitutional
right to remain silent. On the facts of this case, I believe
that the district court properly ruled that Farrell violated

                                18



S 1512 by advising Bachetti to refuse to cooperate with
investigators. I would affirm the judgment of the district
court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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