18 May Witness Tampering and Obstruction of Justice in International Arbitration
The Floyd Landis doping arbitration that is being held at Pepperdine Law School in Malibu, California took a bizarre turn yesterday, with allegations of criminal witness tampering by the Landis camp. You can read the summary by ESPN here, from Velonews here, and detailed blog commentary here.
As most of our readers know, Floyd Landis is under investigation for doping after he failed a urine test following a stage in the Tour de France. Landis faces a possible two-year suspension from cycling and the loss of his title as Tour de France champion if the arbitration panel rules against him.
The surreal moment in the hearing came when Greg LeMond, a witness appearing on behalf of the United States Anti-Doping Agency, alleged that Landis’ manager, Will Geoghegan, called LeMond on Wednesday night and threatened to reveal his history of sexual abuse as a child. The graphic details of the sexually-laced threats are here, but ESPN offers a succinct (and tame) summary:
During his short bit of testimony, LeMond told of a conversation he had with Landis after news of Landis’ positive “A” urine sample during his 2006 Tour victory had been leaked to the press.
LeMond urged Landis to come clean if, in fact, his backup “B” sample also came back tainted.
He said he encouraged Landis to help his sport and “more importantly, help himself.”
“At this point, he said, ‘I don’t see anything that … what good would it do? If I did, it would destroy a lot of my friends and hurt a lot of people,”‘ LeMond testified.
He said he used the story of his being sexually abused when he was 6 as an example of how it’s good to get things out in the open.
“It nearly destroyed me by keeping the secret,” LeMond said.
He said he told Landis that very few people knew that about him, then accused someone in the Landis camp of using that information Wednesday night to intimidate him from appearing as a witness.
LeMond described receiving a call that he said he later traced to the cell phone of Landis’ manager, Will Geoghegan.
“He said, ‘I’ll be there tomorrow and we can talk about how we used to …’ ” , LeMond said, finishing his sentence with a graphic sexual description. “I thought this was intimidation to keep me from coming here.”
He said he was so distraught by the call, he filed a police report, which was presented as evidence by attorneys. Malibu sheriff’s officials, however, declined to release the report or details about it, saying the case was under investigation.
So the police apparently are now investigating whether a felony was committed by Geohegan for witness tampering or obstruction of justice. But the critical question–which numerous reporters asked me in the hallway yesterday–is whether criminal liability could attach for such conduct in the context of international arbitration. After a little research I think the answer is clear as mud.
As best I can tell, the federal statute on witness tampering (18 U.S.C. § 1512) does not seem to apply because it requires witness tampering in the context of an “official proceeding.” An “official proceeding” is defined in 18 U.S.C. § 1515(a)(1) as “(i) a proceeding before a judge or court of the United States, a United States magistrate, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Claims Court, or a Federal grand jury; (ii) a proceeding before the Congress; (iii) a proceeding before a Federal Government agency which is authorized by law; or (iv) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency.”
Obstruction of justice is broader, defined in 18 U.S.C. § 1503, inter alia, as using “any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice.” And the California statute (Penal Code § 182(5)) is similar, prohibiting conspiracy “to commit any act injurious to the public health, to public morals or to pervert or obstruct justice, or the due administration of the laws.”
But do such criminal penalties apply to international arbitration? It seems that arbitration could easily fall within the general definition of administration of justice, and anyone who threatens a witness in that context may be obstructing justice. The California arbitration statute (Cal Civ. Proc. 1283.05) is particularly helpful in this regard, stipulating that:
(a) After the appointment of the arbitrator or arbitrators, the parties to the arbitration shall have the right … to obtain discovery regarding the subject matter of the arbitration, and, to that end, to use and exercise all of the same rights, remedies, and procedures, and be subject to all of the same duties, liabilities, and obligations in the arbitration with respect to the subject matter thereof,… as if the subject matter of the arbitration were pending before a superior court of this state in a civil action….
(b) The arbitrator or arbitrators themselves shall have power, in addition to the power of determining the merits of the arbitration, to enforce the rights, remedies, procedures, duties, liabilities, and obligations of discovery by the imposition of the same terms, conditions, consequences, liabilities, sanctions, and penalties as can be or may be imposed in like circumstances in a civil action by a superior court of this state under the provisions of this code, except the power to order the arrest or imprisonment of a person.
Not directly on point, but these provisions seem to support the general notion that the parties to an arbitration in California may be subject to the same penalties and liabilities that attach in state court. I would think that the combined effect of these statutes would give rise to a colorable claim of criminal liability for obstruction of justice in the context of international arbitration. But then again, there is absolutely no case law or law review commentary I could find directly addressing this question.
Any criminal law or arbitration experts that have thoughts, please comment.
I worked for a number of years at the International Chamber of Commerce in Paris. The short answer is yes – criminal liability for acts in an arbitation are possible. It is however rare. An arbitrator might be challenged for having accepted a bribe and then be removed and still be criminally liable for bribery. It is unlikely that facts of that kind would surface however. There is a famous example on fraud in an arbitration case in France of the 9now tahnkfully defunct) Bordeaux Arbitration Center in which the center, the arbitrator and the winning party colluded to increase the amount of the award against the losing party in exchange for a percentage of the amount of the award being paid to the center and the arbitrator. Ultimately the head of the center and the arbitrator went to jail I think also the winning party. (The center had apparently been picked out of a phone book – not a wise way to do these things). If I remember right, recourse against the award was originally rejected in first instance but that changed at the next level. A twist on this is that, one issue that occurs is when you… Read more »
The relations between arbitration, whether domestic or international, and criminal law have traditionnally raised two issues. The first is whether the arbitral tribunal must stay its proceedings when criminal proceedings are initiated. This is the most serious concern for arbitration lawyers, as it allows strategic behaviour by the defendant. I understand that we are not concerned with this issue here. The second issue is whether a given criminal offence could apply in an arbitration context. This is not an issue of international arbitration, but an issue of criminal law. Each state is free to define conducts that it will consider as criminal offences. So in this matter, the only question is indeed one of interpretation of the relevant criminal statute. Whether the California arbitration statute is relevant in this enterprise is also a matter of local criminal law, and I cannot comment on this. My sense is that California may well perceive arbitrators as private individuals empowered by the seat of the arbitration, i.e. here CA, to do justice. If one accepts this, arbitration proceedings may well be perceived as official. But there is another view. Arbitrators may well not ask for, nor receive any delegation from the seat of… Read more »
As posted here, Will Geoghegan has issued the following statement about the phone call to Greg LeMond on Wednesday night: “I apologize to Greg LeMond and his family for the distress I caused by my call. I also apologize to the arbitration panel and to Floyd Landis and his legal team for the distraction. I have been very angry about how unfair this whole proceeding is to Floyd, a great friend and a greater champion, and stupidly tried to take out my anger on Greg. I acted on my own, impulsively, after a beer or two. I never thought about keeping Greg from testifying. If I had, I would have concluded that since Greg is such a fierce competitor my stunt would likely make him more resolved to testify. What I did was wrong and very unfair to Greg. I am very sorry about and embarrassed by my conduct.” Based on this, it still sounds to me like he may be liable for attempting to “influence, obstruct, or impede” LeMond’s testimony. He was upset at how the trial was going and wanted to influence LeMond’s testimony. But whether the prosecutor should exercise his discretion and go forward, well that’s another… Read more »