Facebook message was not witness tampering

Maldonado v. Municipality of Barceloneta, 2009 WL 636016 (D. Puerto Rico March 11, 2009)

Diaz was a defendant in a federal case in which Febus was a witness for the plaintiff. Diaz invited Febus to join a Facebook group, but Febus declined. Later Diaz sent a message through Facebook which, after translation, read as follows:

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.

Febus sought a protective order under the federal witness tampering statute, 18 U.S.C. 1512 which provides, in relevant part, that “[w]hoever knowingly uses intimidation, threatens, or corruptly persuades another …, or attempts to do so, … with [the] intent to … cause or induce any person to … withhold testimony … from an official proceeding[,]” is guilty under the statute.

The court denied the motion for protective order, finding that there was no evidence, neither raised by the plaintiff nor observable through inference, that Diaz intended to intimidate Febus. “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.”

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