A Buffalo drug defendant convicted of intimidating a witness by posting the witness’ name and secret grand jury testimony on Facebook pleaded guilty Friday to the drug charge.
David McKithen, 26, of Mineral Springs Road, pleaded guilty to a reduced charge of attempted third-degree criminal possession of a controlled substance.
He was originally charged with third-degree drug possession involving more than a half ounce of cocaine that police found Nov. 9, 2011, when they stopped the car he was riding in with three other people at a Grant Street roadblock.
He had been tried twice on the drug charge in Erie County Court, and each time a jury was unable to reach a verdict.
After the first jury deadlocked in February, prosecutors learned that on the eve of that trial, McKithen had his then-fiancee and future wife post on Facebook the names and grand jury testimony of two witnesses to discourage them from testifying against him at his trial.
After that posting, the witnesses and their families received threats for being “snitches,” prosecutors said. Although both testified at trial, one refused to answer questions.
McKithen was retried in October on the drug charge and new charges of intimidating and tampering with the two witnesses. A jury convicted him of the charges with one witness, but it acquitted him of the charges involving the other witness. It was again unable to reach a verdict on the drug charge.
At the time, District Attorney Frank A. Sedita III called the conviction the first of its kind here in which Facebook was used to make a witness’ grand jury testimony and statements public in a bid to intimidate the witness. McKithen obtained the material from his defense attorney who had received it during the discovery process and reviewed it with McKithen, a normal procedure.
Rather than go to trial a third time on the drug charge, McKithen pleaded guilty Friday to the reduced charge. As a second felony offender, he faces a prison sentence of at least 3½ years and at most nine years on the drug charge when he is sentenced Jan. 14 by Judge Sheila A. DiTullio, according to Assistant District Attorney Liam Dwyer.
He also faces a prison sentence of at least 1½ to three years and at most two to four years on the witness intimidation and tampering charges.
The judge indicated Friday that she is inclined to sentence him to 3½ years in prison on the drug charge and order the sentences on the witness charges to run concurrently with that sentence.