Facebook and Witness Tampering

This post is about a case in which Facebook was implicated in a claim of witness tampering. Before we get to the facts of the case, we need to review the law at issue.

Section 1512(b)(1)- (2) of Title 18 of the U.S. Code makes witness tampering a crime:

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to. . . cause or induce any person to . . . withhold testimony, or withhold a record, document, or other object, from an official proceeding. . . shall be fined under this title or imprisoned not more than 20 years, or both.

Section 1515 of Title 18 of the U.S. Code defines “official proceeding” as “a proceeding before a judge or court of the United States”, i.e., a federal civil or criminal case.

The case we’re dealing with is Maldonado v. Municipality of Barceloneta, 2009 WL 636016 (U.S. District Court for the District of Puerto Rico 2009). Here’s what it’s about:

The matter before this court is a motion to issue a protective order barring Julio Díaz from having further contact with witness Alma Febus. The request arises from a series of contacts between Díaz, a defendant in a different case borne of the same nucleus of facts, and Febus, witness for the plaintiff in the instant case. On January 14, 2009, Díaz offered an invitation on Facebook to join his Facebook ‘group’. Febus ignored this invitation. On January 30, 2009, Díaz sent a ‘Facebook message’ to Febus. Febus claims that as a result of receiving the message, she is now fearful of Díaz. Plaintiff asserts that this contact violates the federal witness tampering statute and seeks a protective order.

Maldonado v. Municipality of Barceloneta, supra.

The opinion the judge issued on the witness tampering claim doesn’t tell us what that other case is about, but I googled Julio Diaz and Alma Febus, and came up with this:

Puerto Rico Superior Court Judge Nelson Canabal ruled . . . that Julio Diaz and two other Animal Control Solutions employees must stand trial for multiple charges of animal cruelty. The three men stand accused of confiscating approximately 80 pets from the residents of public housing facilities and hurling them from a 50-foot bridge in Barceloneta, Puerto Rico. Few animals survived the fall and those who did received serious injuries.

The incident generated worldwide outrage and a boycott of Puerto Rico, which is a territory of the United States. Officials estimated a loss of $15 million in tourism revenue between October and December 2007.

`What I would like to get is some justice for all the dogs and cat that died October 8, 2007’. . . comments Alma Febus, one of the investigators of this case. . . .

Diaz continues to deny the charges and his lawyer states they will appeal the ruling.

Since the bridge they talk about in this story was in Barceloneta, and since this case involves the Municipality of Barceloneta, I assume the Diaz and Febus whom the story talks about are the same people involved in this witness tampering claim.

The issue the federal magistrate judge had to resolve was whether what Diaz did constituted witness tampering or attempted witness tampering under the federal statute. Here’s the translation of the message:

If you want to see the evidence that exists against the municipality let me know so that you can inform yourself well and please consult with a lawyer your civil responsibilities as far as defamation. Soon we will be filing a lawsuit and you could be included. My only request is that you are objective when mentioning my name.

Maldonado v. Municipality of Barceloneta, supra. Each side had a very different take on what the message meant:

Febus interprets this statement as a veiled threat, causing her `fear and apprehension regarding her safety and of the possible consequences of her providing information regarding her testimony in the instant case.’ Febus remains ready to be a witness at trial. The defense unsurprisingly interprets the message much differently. To them, Díaz' message `in essence, advises her to be better informed, cautions her against future defamation towards him[,] and mentions a potential civil action.’ The defense also appears to assert as a defense to witness tampering Febus' `defamatory’ language on the Facebook group page she subscribes to. Defamation is not a defense to witness tampering, and will not be addressed further.

Maldonado v. Municipality of Barceloneta, supra.

The court noted that there also seemed to be confusion

as to the classification of the message in question. Defendants incorrectly claim the message constitutes a `blog.’ See Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F.Supp.2d 1205, 1209 n. 3 (D.Nev.2008) (defining a blog as `[a] frequently updated web site consisting of personal observations, excerpts from other sources, etc.') Plaintiffs incorrectly claim the message constitutes an e-mail. . . . This type of communication, a message sent on Facebook, . . . which has not been considered by this circuit or in any other circuit to the court's knowledge, is likely a hybrid of the two. The message in question is clearly in the latter category: messages sent to a user's Facebook inbox are not publicly viewable. Thus, they are not in the `public domain,' where First Amendment rights might attach.

Maldonado v. Municipality of Barceloneta, supra.

The federal magistrate judge ruling on the motion also noted that Diaz’ message “raises issues of hearsay”, but that wasn’t a problem because 18 U.S. Code 1512 specifically allows hearsay and other inadmissible evidence to be considered in assessing a witness tampering claim. Maldonado v. Municipality of Barceloneta, supra.

The judge ultimately held that Ms. Febus was not entitled to a protective order because Diaz’s message did not constitute witness tampering or attempted witness tampering:

Regardless of how the parties choose to construe the message, plaintiff's motion runs afoul of the section 1512 scienter requirement. To violate the statute, it is required that one knowingly use intimidation or physical force, which has been interpreted by the courts to require a culpable mens rea. There is no evidence, neither raised by the plaintiff nor observable through inference, that Díaz intended to intimidate Febus. Plaintiff further fails to provide evidence of a corrupt purpose behind Díaz' words. This court can only see one threat in his Facebook message: the threat of future litigation. This is an insufficient basis for finding witness tampering. Plaintiff fails to provide this court with proof of Díaz' intent to intimidate Febus, a required element of section 1512.

Maldonado v. Municipality of Barceloneta, supra.

This is the only reported case I can find in which a claim of witness tampering was based on the use of Facebook. I don’t see why using Facebook or MySpace can’t provide the basis for a valid witness tampering (or attempted tampering) claim, as long as the facts indicate what just was not present here. If Diaz had sent an overtly threatening or otherwise coercive Facebook message to Ms. Febus, then that would certainly qualify as tampering or attempted tampering.

As I’ve noted here before, the method someone uses to commit a crime should usually be irrelevant. As long as what the defendant did inflicted – or was intended to inflict – the harm the criminal statute outlaws, the defendant has violated the statute and can be held liable (or become the subject of a protective order, I assume).