In United States v. Cotto (available here), the Circuit (Leval, joined by Livingston and Bianco) held that the offense of witness retaliation, 18 U.S.C. § 1513(b)(1), does not require proof that the defendant knew the federal nature of the proceeding in which the witness testified.
Section 1513(b)(1) applies to one who “knowingly engages in any conduct, and thereby causes bodily injury to another person … or threatens to do so, with intent to retaliate against any person for … the attendance of a witness or party at an official proceeding, or any testimony given … by a witness in an official proceeding.” An “official proceeding” is defined to include “a proceeding before a court of judge of the United States.” 18 U.S.C. § 1515(a)(1). Section 1513(b)(1) does require proof “that the defendant acted with retaliatory intent arising out of a person’s testimony at an ‘official proceeding,’ and that the proceeding in which the person testified was in fact federal in nature, such as one ‘before a judge or court of the United States.” Cotto, slip op., at 16.
The question presented here was whether the defendant must know the federal nature of the proceeding. Cotto was convicted of violating § 1513(b)(1) for arranging an assault on a cooperating witness who was in the process of testifying at the federal trial of Cotto’s gang associates. Cotto moved for a judgment of acquittal, arguing that the evidence was insufficient to prove that he knew that the witness had testified in a federal (as opposed to state) trial. The district court (Skretny, WDNY) denied the motion.
The Circuit affirmed, holding: “§ 1513(b)(1) does not require the government to prove that the defendant knew that the ‘official proceeding’ was federal, as specified in § 1515(a)(1).” Cotto, slip op., at 37. The Circuit reasoned that the federal nature of the “official proceeding” was a “jurisdictional” rather than a “substantive” element. Jurisdictional elements are not subject to the presumption of mens rea; rather, “when the statute itself provides no indication that Congress intended for the offense to require knowledge of a jurisdictional element, and when the legislative history does not show that such a knowledge element was intended, courts generally conclude that no such element exists.” Id. at 20. Moreover, the Circuit explained, imposing a knowledge requirement “would significantly undercut the accomplishment” of § 1513(b)(1)’s purposes, as “the federal nature of a particular proceeding” often “has absolutely no relevance to a defendant’s motivation to retaliate for a witness’s cooperation with law enforcement.” Id. at 27.
As to the sentence, Cotto also held that the district court properly applied the three-level enhancement for “substantial interference with the administration of justice,” U.S.S.G. § 2J1.2(b)(2), based on the finding that the assault on the witness: (i) delayed the witness’s trial testimony by three weeks, while the witness recuperated; and (ii) impaired the witness’s capacity and/or willingness to testify, as, after the assault he “did not seem to remember details about which he was crystal clear prior to the assault” and his answers “became significantly shorter.”
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