Witness Tampering: When Does Dirty Work Become A Crime?

There are some legal jobs where you just have to get your hands dirty. Criminal defense attorney Robert Simels may have such a job hes known for defending high-profile alleged criminals, including foreign drug kingpins. Simels found himself searching for his own defense attorney, however, when he was arrested on September 10 for alleged witness tampering. According to the complaint based on a four-month investigation by the Drug Enforcement Agency, Simels instructed an informant to neutralize and eliminate witnesses in a case where he represented an alleged South American drug overlord. According to the complaint, such instructions constituted obstruction of justice under 18 U.S.C. 1512.

While the complaint charges several instances of criminal wrongdoing, Simelss attorney Gerald Shargel has a different take on Simelss behavior: He was doing his work, Shargel said. Intuitively, we all recognize that it is wrong to neutralize or eliminate witnesses. Any direct pressure to prevent a witness from testifying in a legal proceeding or force a witness to testify untruthfully undercuts the justice system.

However, a good attorneys job up to and during litigation is to elicit certain testimony from witnesses while ignoring other testimony. Is this not a form of pressure, used in order to get a witness to say certain things? Can an attorney who is conducting an especially aggressive cross-examination be guilty of witness tampering? When does an attorney cross the line from doing his work to breaking the law?

18 U.S.C. 1512, The Federal Witness Tampering Statute

The federal witness tampering statute applies broadly to any illegal behavior undertaken in an effort to have a witness not testify, or testify untruthfully, in any legal proceeding. The statute runs the gamut in terms of harm incurred upon a witness. Killing or attempting to kill a witness, knowingly using intimidation or physical force or corruptly persuad[ing] a witness, and intentionally harassing the witness are all outlawed under the statute. The punishment level is directly proportional to the severity of the crime: while a person convicted of having a witness killed can be sentenced to life imprisonment, a person convicted of harassing a witness into testifying untruthfully cannot be punished by more than a year of imprisonment.

In order to obtain a conviction for most criminal statutes, the prosecution must show that the defendant possessed a requisite mental state. There are four different mental states applied to criminal statutes, based upon the culpability level of the defendant. The mental states, in increasing order of culpability, include negligence, recklessness, knowing behavior, and intentional behavior.Interestingly, for the witness tampering statute, as the level of threats and violence escalate, the level of culpable mental state lowers. While proving a defendant intentionally harassed a witness requires an intentional mental state, the prosecution need only prove the slightly less stringent mental state of knowing in cases involving physical force or intimidation. In cases involving killing a witness, the prosecution does not have to prove any mental state on the part of the defendant. The language of the statute isnt limited to the defendant in a case. An attorney or a third party could be guilty of witness tampering. In addition, a proceeding as defined by the casinostatute is not limited to the courtroom; it can include an investigation. Finally, the statute covers evidence beyond witness testimony by holding it a crime to corruptly persuade a witness to alter documents that would be used in an official proceeding.

Arthur Andersen LLP

A case involving the accounting company Arthur Andersen LLP showed how broadly the witness tampering statute can be applied. The company was indicted in March 2002 for violating the federal witness tampering statute. The previous October, Arthur Andersen partner Michael Odom warned employees of a likely investigation by the Securities and Exchange Commission involving Arthur Andersens auditing of Enron accounts. Although Odem told everyone to comply with the companys policy of preserving any documents that were related to any litigation, he added that no litigation was taking place at that moment. Odem told the meeting attendees, If [documents are] destroyed . . . and litigation is filed the next day, thats great. Company employees spent the next month shredding documents pertaining to its work with Enron, even though an official investigation was underway for much of that time.

According to the indictment, the company had knowingly, intentionally and corruptly persuade[d] its employees to withhold and alter documents that were to be used in official proceedings. The case was tried in federal court in the Southern District of Texas. The jury determined Arthur Andersens actions constituted witness tampering under the statute. The Fifth Circuit Court of Appeals affirmed; however the U.S. Supreme Court reversed the conviction. Although the Court acknowledged the prosecution was within the bounds of the statute, it took issue with what it determined to be a faulty jury instruction regarding corruptly persuades. Thus, the reversal was largely on semantic grounds. The Court briefly debated whether the instructions to the Arthur Andersen employees to destroy documents constituted corrupt persuasion, but they did not come to any decision.

The Penumbra of Tampering

The federal witness tampering statute also states that it is a violation of the statute for a person to knowingly corruptly persuade another person in an effort to influence the testimony of a person during a proceeding. Although the Supreme Court was slightly stymied by the concept of corrupt persuasion, it is essential that witness persuasion be considered corrupt before it violates the witness tampering statute. Otherwise, any aggressive litigator might be guilty of witness tampering.

At a trial, a litigator is obviously trying to persuade a jury. But isn’t that litigator also trying to mould a witnesses answer in a way that conforms to his argument? By framing questions in a certain way, is the litigator trying to persuade the witness as to how to answer the question? If the witness allows himself to be led by the attorney, is that attorney guilty of witness tampering?In addition, rules of evidence can act as agents of persuasion. For example, an attorney can impeach a witness based upon his criminal history. Therefore, a witness may be persuaded not to take the stand and testify if he has a criminal past. In such a hypothetical case, testimony was influenced or prevented because a witness was persuaded by a threat of impeachment from the opposing attorney. This hypothetical idea illustrates the thin line attorneys must walk between zealous advocacy and witness tampering.

There are many ways in which a witness may be persuaded about whether or how to testify. The key is determining when such persuasion is corrupt and when it is not. At the end of September, a Democratic State Representative of Alaska asked state troopers to investigate potential witness tampering in the investigation of Sarah Palins firing of the states public safety commissioner (an investigation the press has dubbed Troopergate). Rep. Les Gara said the investigation was proceeding smoothly until Palin was named as Vice Presidential candidate. Since then, at least three people have refused to cooperate after receiving subpoenas. Gara said the lack of cooperation coincides with the dispatch of members of the McCain campaign to the state.

Obviously, anyone who would directly pressure witnesses in the case to not cooperate would be guilty of Alaskas witness tampering statutes, which are similar to the federal witness tampering statutes. But what about persuading witnesses? Would it be a crime to suggest to the witnesses that the investigation has no merit and to comply would be to fuel a bitter partisan divide? If the court determined such a statement was corrupt persuasion, then it might be. However, courts would likely be reluctant to apply the statute to any witness persuasion that at most lies in the penumbra of what might be considered corrupt.

Robert Simels

While there are several allegations in the complaint against Robert Simels that, if proven, would constitute witness tampering, it is not so clear that other allegations constitute a crime. The complaint alleged Mr. Simels told an informant, Any witness you can eliminate is a good thing. On its face, such a statute appears to be clear witness tampering. Of course, what did Simels mean by eliminate: kill the witness, or merely render the witness ineffective?

The complaint also states that Simels wanted to know every little detail of a witnesses life in an effort to not have him testify. Can it be that the attorney merely wants to discover an impeachable offense on the part of the witness that might persuade the witness not to testify? Such a legal maneuver would serve as an effective elimination of that witness from the governments case against Simels client, achieved by non-corrupt persuasion. If that’s the case, although it may be dirty, Mr. Simels was just doing his work.