On Appeal From the United States District Court For the Eastern District of Pennsylvania
(D.C. Criminal Action No. 95-cr-00453-1)
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.
(Opinion Filed September 24, 1997)
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. Section(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.
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. *fn2
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 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. Section(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.
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 ...