The first defendant in Western New York to be convicted of using Facebook to intimidate witnesses was sentenced Wednesday to the maximum prison term allowed.
Erie County Judge Sheila A. DiTullio told David McKithen that if she could, she would have sentenced him to more than the two to four years in prison allowed under state law for intimidating and tampering with a witness.
“Maybe the State Legislature will take a look at the law,” she said.
She said intimidating and tampering with a witness are serious crimes “that go to the heart of the trial process and system.”
“Let it be clear to you and your thug friends” that you cannot threaten witnesses, she told McKithen. “How dare you threaten people who witness crimes.”
She advised him against threatening anyone in prison. “It’s a little tougher in there,” she said.
A jury convicted McKithen, 26, of Mineral Springs Road, last year of intimidating witnesses during his drug trial. He sent the witnesses’ grand jury testimony, which he obtained legally from his defense attorney, to his then-fiancee and future wife and told her to post it on Facebook on the eve of his trial.
By posting the witnesses’ testimony on the social media site, McKithen intended to reveal their cooperation with law enforcement and label them “snitches,” District Attorney Frank A. Sedita III said at the time of McKithen’s conviction.
After the material was posted, the two witnesses received threats to themselves and family members, Sedita said. Both witnesses said they felt intimidated into not testifying against McKithen.
But they did testify, although one refused to answer questions.
DiTullio said McKithen’s recorded phone calls from the Erie County Holding Center to his girlfriend instructing her to post the testimony were chilling.
“Nobody talks, everybody walks,” he told her.
But DiTullio said McKithen’s strategy didn’t work, and he was convicted last October of one count of third-degree intimidating a witness and one count of third-degree tampering with a witness.
The jury acquitted McKithen on additional counts of intimidating and tampering with another witness, and it did not reach a unanimous verdict on a drug-possession charge.
McKithen was indicted initially on just the drug charge after police said they found more than a half an ounce of crack cocaine in a car in which he was riding in with three other people. Police stopped the car Nov. 9, 2011, at a Grant Street roadblock.
He went to trial on the drug charge last February, and a jury could not reach a verdict.
Another indictment last May alleged that McKithen, before the initial trial, obtained the grand jury testimony and sworn statements of witnesses against him, and that he had Deyanna Daniels post them on Facebook on the day before opening statements.
Assistant District Attorneys Liam Dwyer and Seth Molisani said one of the two witnesses refused to answer questions at the first trial because of the intimidation and that both testified at the second trial about the intimidation.
McKithen pleaded guilty in December to a reduced charge of attempted third-degree criminal possession of a controlled substance in connection with the cocaine police found in the car. DiTullio sentenced him to 3½ years in prison on that charge and ordered the sentence to run concurrently with the sentences for intimidating and tampering with a witness. She sentenced him as a second-felony offender, noting his 2005 conviction in Niagara County for attempted second-degree burglary and his 2007 conviction in Greene County for promoting prison contraband.
The judge also noted that he had spent five years in state prison and was on post-release supervision when he was arrested on the drug charge in Buffalo.
Daniels, 24, faces trial in February before DiTullio on two counts of intimidating a witness and two counts of tampering with a witness.