Case 3:07-cv-01992-JAG-JA Document 162 Filed 03/11/2009 Page 1 of 5

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF PUERTO RICO

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MADELINE MALDONADO, et al.,
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Plaintiffs
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7 v. CIVIL 07-1992 (JAG) (JA)

8 MUNICIPALITY OF BARCELONETA, et
9 al.,

10 Defendants
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12 ORDER
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14 The matter before this court is a motion to issue a protective order barring

15 Julio Díaz (“Díaz”) from having further contact with witness Alma Febus (“Febus”).
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(Docket No. 148.) The request arises from a series of contacts between Díaz, a
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defendant in a different case borne of the same nucleus of facts, and Febus,
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19 witness for the plaintiff in the instant case. On January 14, 2009, Díaz offered an

20 invitation on Facebook to join his Facebook ‘group’. (Docket No. 148, at 2, ¶ 8.)
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Febus ignored this invitation. (Id.) On January 30, 2009, Díaz sent a ‘Facebook
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message’ to Febus. (Id. at 3, ¶ 9.) Febus claims that as a result of receiving the
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message, she is now fearful of Díaz. (Docket No. 148-4, Ex. 3.) Plaintiff asserts
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25 that this contact violates the federal witness tampering statute and seeks a

26 protective order. (Docket No. 148, at 3-4, ¶¶ 11-13); 18. U.S.C. § 1512.
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The federal witness tampering statute provides legal protection for victims
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6 and witnesses of federal crimes. See McAndrew v. Lockheed Martin Corp., 206

7 F.3d 1031, 1039 (11th Cir. 2000). It provides in the most pertinent sections that
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“[w]hoever knowingly uses intimidation, threatens, or corruptly persuades another
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. . . , or attempts to do so, . . . with [the] intent to . . . cause or induce any
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11 person to . . . withhold testimony . . . from an official proceeding[,]” is guilty

12 under the statute. 18 U.S.C. § 1512(b)(1)(2). Section 1515 defines “official

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proceeding” as “a proceeding before a judge or court of the United States . . . .”,
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including a magistrate judge. 18 U.S.C. § 1515(a)(1)(A).
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16 Plaintiff’s translation of the message at issue before the court, to which the

17 defense does not object, is:

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If you want to see the evidence that exists against the
19 municipality let me know so that you can inform yourself
well and please consult with a lawyer your civil
20 responsibilities as far as defamation. Soon we will be
21 filing a lawsuit and you could be included. My only
request is that you are objective when mentioning my
22 name.
23 (Docket No. 148, at 3, ¶ 9.)
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Febus interprets this statement as a veiled threat, causing her “fear and
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apprehension regarding her safety and of the possible consequences of her
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27 providing information regarding her testimony in the instant case.” (Id. ¶ 10.)

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Febus remains ready to be a witness at trial. (Docket No. 148-4, Ex. 3.) The
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6 defense unsurprisingly interprets the message much differently. To them, Díaz’

7 message “in essence, advises her to be better informed, cautions her against
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future defamation towards him[,] and mentions a potential civil action.” (Docket
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No. 151, at 2, ¶ 3.) The defense also appears to assert as a defense to witness
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11 tampering Febus’ “defamatory” language on the Facebook group page she

12 subscribes to. (Id. at 1-2, ¶ 2; Docket No. 153-2, at 4, ¶ 12.) Defamation is not
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a defense to witness tampering, and will not be addressed further.
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There also appears to be confusion as to the classification of the message
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16 in question. Defendants incorrectly claim the message constitutes a “blog.” See

17 Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1209 n.3 (D.
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Nev. 2008) (defining a blog as “[a] frequently updated web site consisting of
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personal observations, excerpts from other sources, etc.”); see also Indep.
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21 Newspapers, Inc. v. Brodie, 2009 WL 484956, at *3 (Md. Feb. 27, 2009); (Docket

22 No. 151, at 1-2, ¶¶ 2-3.) Plaintiffs incorrectly claim the message constitutes an
23 e-mail. See Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 834 (E.D. Pa.
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1996); (Docket No. 148, at 3, ¶ 9.) This type of communication, a message sent
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on Facebook, a “social networking website,”1 which has not been considered by
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http://www.facebook.com/terms.php?ref=ph
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this circuit or in any other circuit to the court’s knowledge, is likely a hybrid of the
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6 two. Connectu LLC v. Zuckerberg, 522 F.3d 82, 86 (1st Cir. 2008). The message

7 in question is clearly in the latter category: messages sent to a user’s Facebook

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inbox are not publicly viewable. Thus, they are not in the “public domain,” where
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First Amendment rights might attach.2 See Golan v. Gonzales, 501 F.3d 1179,
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11 1193 (10th Cir. 2007).

12 Regardless of how the parties choose to construe the message, plaintiff’s

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motion runs afoul of the section 1512 scienter requirement. To violate the
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statute, it is required that one knowingly use intimidation or physical force, which
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16 has been interpreted by the courts to require a culpable mens rea. See United

17 States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999); United States v. Johnson, 968
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F.2d 208, 211 (2d Cir. 1992). There is no evidence, neither raised by the plaintiff
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nor observable through inference, that Díaz intended to intimidate Febus. Plaintiff
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21 further fails to provide evidence of a corrupt purpose behind Díaz’ words. This

22 court can only see one threat in his Facebook message: the threat of future
23 litigation. This is an insufficient basis for finding witness tampering. See G-I
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Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d 233, 266 (S.D. N.Y. 2001).
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The court notes that the Facebook message raises issues of hearsay.
27 However, 18 U.S.C. § 1512 allows such evidence. 18 U.S.C. § 1512(f)(2) (“For
the purposes of this section . . . the testimony . . . need not be admissible in
28 evidence or free of a claim of privilege.”)
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Plaintiff fails to provide this court with proof of Díaz’ intent to intimidate Febus, a
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6 required element of section 1512.

7 For these reasons, plaintiff’s motion for a protective order barring Díaz from
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having further contact with Febus is DENIED.
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SO ORDERED
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11 At San Juan, Puerto Rico, this 11th day of March, 2009.

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S/ JUSTO ARENAS
14 Chief United States Magistrate Judge
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