United States v. DavisUnited States v. Davis
1999 Decisions
Opinions of the United States Court of Appeals for the Third Circuit
7-19-1999
USA v. Davis
Precedential or Non-Precedential:
Docket 98-6251
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Recommended Citation
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 98-6251
UNITED STATES OF AMERICA v. VINCENT R. DAVIS, Appellant
On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. No. 97-cr-00552) District Judge: Honorable Alfred J. Lechner, Jr.
Argued: May 19, 1999
Before: BECKER, Chief Judge, RENDELL, and ROSENN, Circuit Judges.
(Filed July 19, 1999)
ANTHONY J. IACULLO, ESQUIRE (ARGUED) Iacullo & Saluto, P.C. 103 Park Street Montclair, NJ 07042 Counsel for Appellant
OPINION OF THE COURT
BECKER, Chief Judge.
This appeal arises out of a bizarre factual situation that reads like the plot of a Grade B melodrama. It requires us to interpret several statutes that protect the integrity of federal criminal investigations. The government has understandably attempted to find a law that criminalizes the conduct of defendant Vincent Davis, which is as reprehensible as it is unusual. In the process, however, the government has stretched several laws beyоnd their breaking points. We conclude that the evidence adduced at Davis‘s trial was insufficient to convict him of obstruction of justice, conspiracy to obstruct justice, or use of a telephone in aid of racketeering activity (violation of a New York statute prohibiting receipt of any benefit for violation of official duty). Nonetheless, Davis‘s conduct is not beyond the reach of federal law: There was sufficient evidence to convict him of witness tampering. We are persuaded, however, that he was entitled to an instruction on his intoxication defense to that charge and that the District Court‘s refusal to give such an instruction requires that he be given a new trial. Since Davis may be retried on the witness tampering counts, we resolve his objections to several of the District Court‘s evidentiary rulings. Because of our disposition of Davis‘s claims, we need not address his challenges to his sentence.
At the time of the relevant events, Davis was an officer with the New York Transit Police, although he was terminated in February 1997 following his indictment in the present case. Davis married Diane Pelatti in 1983, and the two were divorced in March 1994. Richard Sabol is a career criminal with lifelong ties to organized crime families. He and Diane Pelatti had dated in high school, and Davis testified that, when Pelatti and Sabol broke up, Sabol threatened to throw acid in her face and cut off her fingers. He also threatened Davis and Davis‘s family when Davis began to date Pelatti. Davis plainly developed an obsession with Sabol. On his own initiative, he attended Sabol‘s 1986 sentencing in New York for credit card fraud; obtained a copy of Sabol‘s “rap sheet“; and discussed Sabol with Agent Ronald Geer, an agent for the Federal Bureau of Investigation (“FBI“), who was present at the 1986 sentencing hearing.
In 1992, Sabol was convicted in Georgia on federal drug charges. Davis learned of Sabol‘s Georgia arrest in a roundabout fashion: In early 1992, he received a threatening phone call from a person he believed to be Sabol. He then contacted Agent Geer to find out whether Sabol could have made the call. Geer told him about the Georgia crime and stated that Sabol was going to prison for many years. What Geer did not tell Davis was that Sabol had become an informant in a Georgia investigation, for which he received a sentence reduction.
In late 1992, the U.S. Customs Service (“Customs“) decided to use Sabol in the New York/New Jersey area to infiltrate the Giampa Crew, which was a branch of the Lucchese crime family. Sabol was acquainted with Gennaro Vittorio, who hoped to become a “made man” in the Giampa Crew. Vittorio‘s stepfather was Joseph Giampa, from whom the Crew took its name. Customs used Sabol in a ruse whereby Sabol told Vittorio and others that he was on work release and offered to engage in various illegal activities.
From October 1993 to January 1994, Sabol gained Vittorio‘s confidence and also met others in the Crew. They engaged in several small-scale transactions in allegedly
Meanwhile, Davis heard from various acquaintances that Sabol was back in town. In view of Sabol‘s former relationship with his wife, this information made Davis extremely upset, especially as he was having marital difficulties. One of the people who warned him that Sabol had returned was Michael Lanteri (“Michael“), who was married to Maria Lanteri (“Maria“), Davis‘s sister. Michael and Vittorio were childhood friends, and Michael saw Vittorio with Sabol. Because Davis knew that Sabol‘s Georgia conviction should have kept him in prison for many years, Davis inferred that Sabol must have been cooperating with the authorities in order to get a sentence reduction.
Vittorio, who was ignorant of Sabol‘s Georgia history, became confident enough of Sabol‘s criminal tendencies that he sought to use Sabol to establish an import/export business in New Jersey to import drugs and export stolen vehicles. He gave Sabol $10,000 for this purpose on January 24, 1994. On January 25, 1994, however, Michael called Vittorio. He explained that he could not speak on the phone but insisted that Vittorio come to the Lanteris’ apartment because Michael had important information for him. Moments later, Maria also phoned Vittorio and repeated Michael‘s urgings. Soon thereafter, Vittorio used his tapped cell phone to call James McManus, a member of the Giampa Crew, and stated that he could not tаlk on the cell phone because “there is a lot of static right now,” but that he would page McManus from a pay phone, which McManus should then call. This was the first indication that the Customs investigation was souring.
As later testimony would show, Vittorio began to distance himself from Sabol because, at the Lanteris‘, Michael told him that he was being set up, that Sabol had been arrested for a serious crime and should not be out on the street, and that Vittorio‘s crimes were being captured on tape. Vittorio asked how Michael knew all this, and, after some initial
In order to back up his story, Davis showed Vittorio a piece of paper with a federal prosecutor‘s name and Agent Geer‘s name on it. He told Vittorio that he had a good source for his information, an FBI agent, and that there was “just no way” that Sabol could be on the street without being an informant. Vittorio told Davis that Sabol had given him cell phones, and Davis responded that they were definitely tapped. He warned Vittorio that Sabol would testify against Vittorio. Vittorio testified that Davis told him to “do something about it” and that Davis asked him for a gun. Although Vittorio later broached the idea of killing Sabol to his stepfather, the stepfather immediаtely vetoed the idea. Vittorio testified that he never seriously considered murder, nor did he ever consider giving Davis a gun.
After that night, Vittorio and his confederates began to distance themselves from Sabol. On January 26, 1994, McManus told Sabol that he could not sign a lease for the warehouse needed for the import/export business because he had to work and because of a “serious problem.” Vittorio told Sabol that a “minor” problem had developed. On January 27, 1994, Vittorio called Sabol and told him to return the money he‘d received from Vittorio only three days earlier. Vittorio and the others also stopped using their cell phones for illicit business.
Sabol, sensing his opportunity slipping away, attempted to convince Vittorio of his trustworthiness. They talked on the phone on February 1 and February 18. Ultimately, Vittorio told Sabol that he had been informed that Sabol was working for the government. He suggested that there was a “crooked” FBI agent involved. This immediately triggered an FBI investigation into the source of the leak, as a result of which the Lanteris’ phone was tapped.
Sabol apparently contacted Pelatti that day. Pelatti informed Sabol that Davis had told her that he would do “everything in [his] power” to get Sabol back in jail. She also said that Davis told her that Sаbol was out on work release and involved in illegal activities. At this point, Davis tried to reconcile with Pelatti and perceived Sabol as a threat.
On March 2, 1994, Davis once again contacted Vittorio, trying to convince him that Sabol was an informant. Vittorio dodged his calls, but ultimately the two met once again. Davis reiterated his earlier claims and suggested that Vittorio was on audio and videotape committing crimes with Sabol. He described his knowledge of Sabol‘s status as “gospel” and once again suggested that Vittorio should give him a gun. Davis was extremely drunk, at least by the end of the meeting. Vittorio was still unsure about Sabol; he sought a face-to-face meeting, believing that if Sabol were really an informant he would refuse such a meeting because of the danger to his safety. Sabol‘s handlers refused a face-to-face meeting on exactly those grounds.
In light of Vittorio‘s continuing reluctance to trust Sabol, Customs terminated its Giampa Crew investigation in April 1994. Indictments against members of the Crew came down in August 1994. Vittorio testified that, were it not for Davis, he would have continued to engage in illegal activities with Sabol, increasing his criminal liability in the resultant trial.
As a result of the FBI investigation into the leak about Sabol, Davis was charged with four different crimes comprising eleven counts: one count of obstruction of justice, one count of conspiracy to obstruct justice, two counts of witness tampering, and seven counts of using a telephone in aid of an unlawful act, specifically receiving a benefit for the violation of his official duty as a police officer. After a jury trial, he was convicted on all counts.
Because Davis was convicted after a jury trial, we must defer to the jury‘s verdict and view the evidence in the light most favorable to the government. See United States v. Sain, 141 F.3d 463, 466 (3d Cir. 1998). If there is substantial evidence upon which a reasonable jury could have based its verdict, we should affirm. See United States v. Obialo, 23 F.3d 69, 72 (3d Cir. 1994). The jury may make reasonable inferences from the evidence presented; the evidence need not unequivocally point to the defendant‘s guilt as long as it permits a finding of guilt beyond a reasonable doubt. See United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990). Insufficiency of the evidence claims, in particular, place a heavy burden on a defendant. See United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990).
II. The Counts of Conviction
A. Obstruction of Justice
Count 2 of the indictment charged obstruction of justice under
Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
In order to violate S 1503, a defendant must have notice or knowledge of the pendency of some judicial proceeding constituting the “administration of justice.” See United States v. Nelson, 852 F.2d 706, 710 (3d Cir. 1988). The District Court ruled that there were two possible judicial proceedings that Davis might have obstructed: the grand jury investigation into the Giampa Crew and the wiretap investigation. Though there is some confusion on this point, we presume that the jury would have considered the Customs wiretаp rather than the later FBI wiretap
The verdict form provided to the jury separated the “grand jury obstruction” from the “wiretap obstruction” and allowed the jury to find Davis guilty or not guilty separately, and repeated this for the conspiracy counts. The jury found Davis guilty of both “grand jury obstruction” and “wiretap obstruction.” Therefore, while we conclude that S 1503 does not prohibit “wiretap obstruction,” thus invalidating Davis‘s conviction therefor, we must also evaluate the sufficiency of the evidence of “grand jury obstruction.”
1. Wiretap Obstruction
As a foundation for this charge, Customs Agent James Delia testified that the Giampa Crew wiretaps were reviewed every ten days by the district court that authorized them. Davis does not contest this, but argues that a wiretap is not a “pending judicial proceeding” within the meaning of S 1503. This is an issue of first impression in the federal courts. We conclude that the wiretap was at bottom an element of the Customs investigation and that it could not be a “pending judicial proceeding” within the scope of the statute.
Courts have repeatedly held that an investigation simpliciter is not enough to trigger
The government nonetheless argues that a wiretap investigation may constitute a judicial proceeding within the meaning of S 1503 where it is monitored actively by a federal district court, citing United States v. Aguilar, 515 U.S. 593 (1995), and United States v. Walasek, 527 F.2d 676 (3d Cir. 1975). However, Aguilar does not support the government‘s claim. Indeed, in that case, the government charged the defendant‘s wiretap-related conduct under a separate statutory provision that prohibits revealing the existence of a wiretap,
The government‘s theory is drawn from our caselaw, which has heretofore focused on when a grand jury investigation progresses to a stage where it can be said to be “pending.” Describing the level of involvement a grand jury must have with an investigation to triggerS 1503, we wrote:
Appellant would have us adopt a rigid rule that a grand jury proceeding is not “pending” until a grand jury has actually heard testimony or has in some way taken a role in the decision to issue the subpoena. He offers no authority for such a rule, and we are not inclined to adopt it. Appellant is correct in his observation that a grand jury subpoena may become an instrumentality of an investigative agency, without meaningful judicial supervision. Nevertheless, the remedy against potential abuses is not to establish a rule, easily circumvented,
by which some formal act of the grand jury will be required to establish “pendency.” The remedy is rather to continue to inquire, in each case, whether the subpoena is issued in furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated presentation of evidence before the grand jury.
Walasek, 527 F.2d at 678 (footnote omitted) (emphasis added).
The government seizes upon the phrase “judicial supervision” to argue that, because the wiretap was subject to judicial supervision, it is sufficiently analogous to a grand jury investigation to qualify as a “pending judicial proceeding.” The flaw in the government‘s argument is that judicial supervision is not the test; the test is whether there is a judicial proceeding. Walasek considered the role of the grand jury in investigations, and we decline to read one phrase in that decision as authorizing a sweeping expansion in the concept of “pending judicial proceedings,” one for which the government has no other support.
Fundamentally, a wiretap order is an investigative method used by the executive branch, not an element of the judicial process. See United States v. Giordano, 416 U.S. 505 (1974) (discussing the history of wiretapping regulation). Judicial supervision pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
We conclude that a wiretap order is more like a search warrant than it is like a grand jury and that its pendency does not constitute the “administration of justice” within the meaning of S 1503. See Brown, 688 F.2d at 598. It follows that Davis cannot be convicted of violatingS 1503 for intentionally interfering with a wiretap.
2. Grand Jury Obstruction
A grand jury investigation clearly qualifies as a pending judicial proceeding under S 1503. See United States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993). The District Court, in its written opinion upon Davis‘s sentencing, found that there was a pending grand jury investigation into organized crime and the Giampa Crew in particular at the time of Davis‘s acts. However, the trial record is nearly barren of any evidence of this fact. The government identifies one piece of evidence in support of its contention--the testimony of Agent Delia, who testified that, before obtaining the wiretap order of January 13, 1994, Customs subpoenaed subscriber information and toll records for a number of customers from NYNEX. But Agent Delia did not testify that a grand jury was actually in the process of investigating the people whose records were subpoenaed or that the subpoena issued in furtherance of a presently contemplated presentation of evidence before a grand jury.
As in many districts in modern times, a grand jury is always empaneled in the District of New Jersey, which comprises the entire state of New Jersey. For that very reason, the mere existence of a grand jury in a district does not trigger S 1503; the grand jury must have some relationship to the investigation that is obstructed. See Nelson, 852 F.2d at 711. Nor is the issuance of а subpoena automatically proof of a pending grand jury investigation. As we wrote in Nelson:
Fed. R. Crim. P. 17(a) provides for issuance of subpoenas “signed and sealed but otherwise blank to a party requesting it, who shall fill in the blanks before it is served.” Because these subpoenas are issued without meaningful judicial oversight, the pendency of a grand jury investigation cannot be determined from their face alone. Not every investigation in which grand jury subpoenas are used ripens into a pending grand jury investigation for purposes of18 U.S.C. S 1503 .
Thus, the government must show something more than that a grand jury exists in the district and that subpoenas have issued in order to prove that a judicial proceeding is pending. We have refused to make rigid rules about how the connection between an investigation and a grand jury must be shown so as to avoid meaningless formality, see
There is another fundamental flaw in the government‘s case. A person who lacks knowledge or notice of a pending proceeding necessarily lacks the intent to obstruct that proceeding. See Aguilar, 515 U.S. at 599; Pettibone v. United States, 148 U.S. 197, 206 (1893). The Aguilar Court explained that recent decisions of the appellate courts have placed certain boundaries on S 1503‘s apparently broad sweеp. For example, the defendant‘s action “must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court‘s or grand jury‘s authority.” Aguilar, 515 U.S. at 599 (citing Brown, 688 F.2d at 598).“[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” Id.
The government concedes that there is no record evidence that Davis had actual knowledge of a grand jury proceeding, but argues that the evidence was sufficient to support a conviction on the ground that Davis inferred that a grand jury investigation was pending. Davis knew that Sabol had been convicted in Georgia on serious drug charges and was facing a twenty-year prison term. He received assurances from a FBI agent that Sabol would serve a lengthy sentence. In light of the fact that Davis was a police officer, the District Court found that there was a sufficient basis to conclude that Davis knew or believed that Sabol was only out of prison because he was an informant or cooperating witness in some federal investigation. Indeed, Davis communicated this belief to Michael and Vittorio, and, in the District Court‘s view, the jury could take him at his word, even though he later claimed that he was just bluffing to get Sabol out of his life.
The District Court‘s reasoning is sound, but it fails to go far enough to show Davis‘s knowledge of a grand jury investigation. There was no evidence that Davis concluded that Sabol was involved in a grand jury-based investigation. Agent Geer and Davis‘s superior, Larry Wirsing, both testified that a police officer would likely conclude that a person in Sabol‘s situation was or had been an informant. Both men formed the impression that Davis had reached this conclusion, though nothing explicit was said. But informants and investigations exist without grand juries. We cannot find in this record a shred of evidence that Sabol‘s status as an informant would have led Davis to conclude that Sabol was involved in an investigation related to a pending grand jury proceeding.
The only relevant case from this circuit involves police officers who beat a civilian to death and then took actions to cover up their misbehavior. See United States v. Messerlian, 832 F.2d 778 (3d Cir. 1987). The defendants argued that there was no evidence that they could have foreseen that federal judicial proceedings were in the offing when they committed their obstructive conduct. We found that the defendants, ten- and twenty-five-year veterans of the New Jersey State Police, could, by reason of their positions, be expected to know that federal grand jury investigations often follow when an arrestee dies suspiciously in police custody. See id. at 794 n.23. By contrast, we do not think that a police officer, particularly a transit police officer, should ordinarily expect that an informant is involved with a grand jury investigation, and the government offered no testimony to the contrary. Intent
The government‘s proof in this case is deficient in two respects: First, it failed to show that the NYNEX subpoena was issued pursuant to a presently contemplated presentation of evidence to a grand jury. Second, it failed to show that Davis had the requisite knowledge that a grand jury investigation, as opposed to an investigation by federal agents, was pending. Davis‘s conviction on this count must therefore be reversed.
B. Conspiracy to Obstruct Justice
Count 1 of the indictment charged conspiracy to obstruct justice in violation of
It is clear that the parties involved in this intrigue had different motives. Vittorio wanted to protect his confederates and himself; Davis wanted to hurt Sabol; Michael wanted to please Maria by helping her brother with his personal problems, and he also wanted to protect his childhood friend. Davis contends that this disproves a conspiracy. We disagree. If they all agreed to interfere with a pending judicial proceeding, they are guilty of conspiracy. That is the difference between motive and intent.
A conspiracy requires agreement between at least two people to the illegal object of the conspiracy, though other
Molt‘s requirement is not met here. The government relied on Davis‘s status as a police officer to argue that he was aware of the pendency of a judicial proceeding. We have already rejected that conclusion, and none of the other alleged coconspirators were police officers. Two actually testified: Vittorio and Michael. Both testified for the government, though Michael was something of a hostile witness, and neither testified about his knowledge of a pending or foreseen judicial proceeding. While Vittorio was clearly a wrongdoer, and Michael and Maria no doubt knew that Davis‘s actions were not legitimate, we cannotfind any evidence that wоuld allow a reasonable jury to conclude that they conspired to obstruct a judicial proceeding. Cf. Schramm, 75 F.3d at 160 (a defendant could not be convicted of conspiracy to commit mail fraud where there was no evidence that the defendant knew of the mail fraud, though he knew of many other illegal acts by his alleged coconspirators). Therefore, Davis‘s conspiracy conviction must also be reversed.
C. Use of a Telephone in Furtherance of an Unlawful Act
Counts 5-11 charged Davis with use of a telephone in aid of racketeering in violation of
[w]hoever . . . uses any facility in interstate or foreign commerce, with intent to . . . promote, manage, carry on, or facilitate the promotion, management, establishment, or carrying on of any unlawful activity, and thereafter performs or attempts to perform [any of the acts specified commits an offense against the United States].
The “unlawful activity” charged is a violation of
A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.
Under New York law, “benefit” is defined to include “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.”
The critical issue is whether Davis, a New York police officer at the relevant times, solicited a “benefit” within the meaning of the statute. The government‘s theory was that any harm to Sabol benefited Davis, whether in the form of Sabol‘s return to prison or Sabol‘s murder. Davis made a phone call to Pelatti‘s residence on February 18, 1994, that suggested that he perceived Sabol‘s presence as impeding his attempt to reconcile with Pelatti, and the government argues that his hope of ending Sabol‘s newfound freedom was a sufficient “benefit.”
Although the New York Court of Appeals has not construed
The Hyde court rejected a prosecution theory similar to that proffered in this case, which is that the defendant‘s request for something is proof enough that getting it would be a “benefit” to him:
The People . . . contend[ ] that the mere fact that Robin, for the Northern Bank, acceded to defendant‘s request that that bank should make the loan desired by the Carnegie Trust Company, of itself constituted a bribe and was manifestly a personal advantage and thing of value to defendant, and so the court charged as matter оf law. It is quite clear that this position is untenable. It is not to be disputed that . . . what is commonly known by the collective word “bribe,” is something more than the personal satisfaction arising from the gratification of a wish. There must be something more flowing to the person who asks the favor--something of value to him, not necessarily of pecuniary or intrinsic value, but value in the sense of a personal advantage of some sort. The word “advantage” must be given its commonly accepted and natural meaning of something accruing to the benefit of the person receiving it. . . . . [A bribe] must consist of something real, substantial and of value to the receiver, as distinguished from something imaginary, illusive, or amounting to nothing more than the gratification of a wish or hope on his part.
Id. at 1093 (emphasis added). Hyde is still commonly cited in prosecutions under section 200.25 and related laws.
The most recent relevant case is People v. Feerick, 671 N.Y.S.2d 13 (App. Div. 1998). The majority sustained convictions under section 200.25 where the defendants, who were police officers, had committed various abuses of authority in their search for a lost police radio. The majority concluded that the return of the radio was “a specific, personal benefit to these defendants as well as a benefit to
The government argues that the majority opinion in Feerick supports its theory because retrieving the radiо offered psychic benefits to the officers--the satisfaction of getting the radio back. Similarly, it argues, telling Vittorio about Sabol offered Davis the psychic benefit of harming Sabol. But Feerick did not turn on the defendants’ nonpecuniary motives for seeking the radio; under the statute, a public servant is guilty if he solicits an item with de minimis market value but great personal value. The question is whether we can find anything sufficiently well-defined here that we might identify as a “benefit.”
Other cases emphasize that a “benefit” must be definite in some way, although it need not be tangible. In People v. Dolan, 576 N.Y.S.2d 901 (App. Div. 1991), the defendant, a police officer, was accused of attempted bribery and attempted bribe receiving for threatening to stop transporting prisoners of a separate police jurisdiction to the County Jail unless the Sheriff of the other jurisdiction agreed to limit investigations by his department in the defendant‘s jurisdiction. The prosecution argued that the “benefit” sought by the defendant was “a lessening of the possibility of discovery of alleged drug use by defendant and his friends.” Id. at 904. The court rejected this theory and dismissed the charge. The court found that the benefit was not “real, substantial and of value,” but was rather “imaginary, illusive or amounting to nothing more than the gratification of a wish or hope.” Id. (citing Hyde).
The Dolan court also dismissed a charge that the defendant received a benefit from agreeing to refrain from prosecuting a woman. The alleged benefit was that, in return for his forbearance, she would become a confidential police informant. The prosecution argued that the “benefit” was that the defendant got a personаl relationship with the
In People v. Esposito, 554 N.Y.S.2d 16 (App. Div. 1990), the chief of the Metro North Railroad Police conducted an unauthorized criminal record check on a company employee, in violation of his duty as a public servant. The alleged “benefit” was the utility to his employer of knowing relevant information, but the court found that this was too ill-defined to fall within the statutory prohibition. Likewise, in People v. Cavan, 376 N.Y.S.2d 65 (Sup. Ct. 1975), the defendant was charged with bribery when, on his arrest, he offered to assist the police in catching drug dealers in return for leniency. The court held that
the benefit must not be so remote, abstract, or theoretical as to create speculation as to its ultimate value to the receiver. In the case at bar, it is doubtful if a vague offer to turn State‘s evidence, without anything further, constitutes such a benefit in the statutory sense.
In People v. Adams, 382 N.Y.S.2d 879 (County Ct. 1976), the defendant, a legislator, was part of a committee studying off-track betting. He prevailed upon an employee of a firm that had made a formal presentation to the committee to ghost-write a final report for the committee. The court found that the defendant had not received a “benefit” within the meaning of the penal law:
“The gist of the crime of bribery is the wrong done to the people by corruption in the public service.” Thus, the public servant who agrees to and does manipulate events, not to benefit himself оr a third party, but for the personal satisfaction of commanding obedience, is said to receive no bribe.
Id. at 881 (citations omitted) (emphasis added). The court found that the supposed “benefit” was too nebulous to support a charge of receiving reward for official misconduct,
We believe that the “benefit” here is too gossamer to fall within
Where the alleged benefit consists of an intangible course of conduct, we think that it must be sufficiently specific to constitute a clearly defined and direct advantage to the defendant, or to a third party in whom he has some interest. Compare Dolan, 576 N.Y.S.2d at 404 (alleged benefit of lessened possibility of discovery of the defendant‘s other misconduct was insufficiently specific to fall within the statute), with People v. Hochberg, 404 N.Y.S.2d 161, 167 (App. Div. 1978) (a person‘s agreement not to run against the defendant in a primary election was a sufficiently direct benefit to constitute “personal advantage” to the defendant). It was the government‘s own theory that Davis wanted Sabol out of his life and did not care how, whether the mechanism was: (1) that Sabol‘s cooperation failed to produce results so that Sabol would return to prison; (2) that Sabol would be charged with violating his parole; or (3) that Sabol would be killed. Davis had no specific plan. We recognize that New York does not require a tangible benefit in order to find a violation of
Moreover, Davis‘s request for a gun was not necessarily tied to his violation of duty, nor was it in any way tied to his status as a police officer. If Vittorio had already known about Sabol‘s status, Davis could just as readily have asked for the gun, and Vittorio would have had as much reason to give it to him to “take care” of Sabol. In this instance, Davis acted like an obsessed person, not a corrupt police officer. Thus, we conclude that Davis‘s convictions for violating
D. Witness Tampering
1. Introduction
Davis was also charged with witness tampering in violation of
Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . shall be fined under this title or imprisoned not more than ten years, or both.
Unlike
To be criminally liable, the defendant must know that his conduct has the natural and probable effect of interfering with the witness‘s communication, whether or not it succeeds. See United States v. Kenny, 973 F.2d 339, 344 (4th Cir. 1992). Davis indicated that he wanted Vittorio to stop dealing with Sabol and warned Vittorio that Sabol was “setting him up.” He also hoped that Vittorio would kill Sabol. The government argues that the natural, foreseeable, and probable consequence of Davis‘s acts was that Sabol would be killed or otherwise prevented from gaining and conveying information. Although we find the government‘s theory extremely broad, we conclude that Davis‘s conduct in this case falls within the statutory meaning of “corrupt persuasion.”
Simply interfering with the flow of information to the government is not enough to constitute witness tampering. Suppose that Vittorio became suspicious of Sabol on his own and stopped talking to him, thus decreasing the amount of information Sabol could communicate to the government. By the government‘s theory, this would apparently constitute witness tampering by Vittorio. Or hypothesize that Michael tried to dissuade Vittorio from his criminal ways, using as one of his arguments the proposition that the government had infiltrated the Giampa Crew. By the government‘s theory, this would apparently constitute witness tampering by Michael. Indeed, a lawyer‘s instruction to a client not to speak to potential government witnesses, including government investigators, would also apparently constitute witness tampering by this theory, except that the statute excludes lawful, bona fide legal services in connection with or anticipation of an official proceeding. See
2. Corrupt Persuasion
The Ninth Circuit has held that lying to a witness is not corrupt persuasion, though appealing to a witness to avoid testifying truthfully in order to protect one‘s career would be. See United States v. Aguilar, 21 F.3d 1475, 1485-86 (9th Cir. 1994) (en banc), rev‘d on other grounds, 515 U.S. 593 (1995). United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), gives more guidance on the meaning of corrupt persuasion. Poindexter interpreted
As the court explained, “corruptly” has two possible meanings, transitive and intransitive. The transitive meaning would involve persuading another by means of corruption or bribery, while the intransitive would involve persuading “wickedly” or “immorally,” that is, with a bad motive. Poindexter endorsed the transitive meaning in order to avoid what it perceived as a potentially unconstitutional vagueness, and also because the other terms in the statute were transitive (“by threats,” “by force,” etc.). It further found that “corrupt persuasion” could not be cabined simply by saying that the term covered “influencing another to act `immorally’ or `improperly,’ ” as that simply substitutes one indefinite term for another.
We approved of Poindexter‘s reasoning in the
Without any definitional assistance, we find the phrase “corruptly persuades” to be ambiguous. We agree with Farrell that the phrase cannot mean simply “persuades with the intent to hinder communication to law enforcement” because such an interpretation would render the word “corruptly” meaningless.
Farrell, 126 F.3d at 487. While we were confident that bribing someone to withhold information or persuading someone to provide false information would be corrupt persuasion, we declined to define the term more abstractly. See id. at 488. Farrell concluded that the statute did not cover a noncoercive attempt to persuade a coconspirator who had a Fifth Amendment right not to disclose information about the conspiracy to refrain, in accordance with that right, from volunteering information to investigators. See id. at 488.5
The government argues that Farrell is distinguishable because the defendant in that case was acting in furtherance of his own interest in avoiding a coconspirator‘s disclosure of a crime, while here Davis was a malicious
We read the inclusion of “corruptly” in S 1512(b) as necessarily implying that an individual can “persuade” another not to disclose information to a law enforcement official with the intent of hindering an investigation without violating the statute, i.e., without doing so “corruptly.” Thus, more culpability is required for a statutory violation than that involved in the act of attempting to discourage disclosure in order to hinder an investigation.
Davis may be properly convicted under
Having decided that there is sufficient evidence for a conviction under
A. The Request for Instruction
When Davis‘s trial counsel initially raised the issue of an intoxication charge, the District Court was uncertain that such an instruction was required and requested briefing on the issue. The record reveals the following exchange on March 20, 1998, a Friday:
Mr. Cascione: I made an additional submission which I gave Mr. Sierra, so if he wishes to cover it during his opportunity for an intoxication charge because I saw some reason for it as the proof came out.
I will submit it to the Court so that the Court has it and we‘ll cover it in our charge conference.
The Court: You better give me law on that.
Mr. Cascione: That‘s understood.
The Court: I need law on that. I‘m not sure I see the basis for an intoxication charge here, but you can address that factually and legally. Give me these briefs Monday morning.
Over the weekend, however, there was an unexpected early spring snowstorm that disrupted much travel in the area; we take judicial notice of the snowstorm. See Elise Young & Barbara Williams, North Jersey Gets a Taste of
I have the submission. I was prepared to give the Court citing from Blackmore [sic]. There is an Eighth Circuit case on it that I was not able to obtain yesterday.
The statement obviously refers to E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, the veritable “bible” on the subject, which virtually every federal district judge has in his or her chambers.
The Court rejected the intoxication charge because defense counsel had not provided enough support for it:
I told you I wanted something and you haven‘t given me anything. The stuff you have given me is not adequate.
Now, you‘ve got an intoxication argument, you haven‘t given me the charge, you haven‘t given me any law on it. I came in early to handle it. . . .
I know the whole idea behind this is for you to “preserve this” and raise it now so you can bring it up on appeal and I have a real serious problem with that, and I‘m going to have to address all this in an opinion with regard to this, which means again I‘m going to have to be doing your work and I don‘t think I should have to do your work.
The District Court never ruled that an intoxication charge was not justified by the facts; rather, it apparently rejected the charge because of counsel‘s failure to brief the issue.
The government‘s appendix contains defense counsel‘s written request to give an intoxication instruction, along with excerpts from Devitt & Blackmar relevant to intoxication. The government and the defendant cannot agree on whether these papers were in fact submitted to the District Court.7 We need not resolve the conflicting
The government argues that Davis waived the issue by failing to brief it to the District Court. Waiver, however, is an intentional relinquishment of a known right. See United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995). Davis‘s counsel did not relinquish his request for an intoxication instruction, though he failed to supply the court with precedent in support of his request. We are persuaded that the appropriate inquiry is whether defense counsel‘s acts preserved the issue for appellate review. See United States v. Russell, 134 F.3d 171, 178-79 (3d Cir. 1998).
In general, if an instruction is timely requested, is supported by the evidence, and correctly states the law, it should be given. See, e.g., United States v. Jerde, 841 F.2d 818 (8th Cir. 1988); United States v. Hicks, 748 F.2d 854 (4th Cir. 1984). However, counsel is required to draw the court‘s attention to a specific instruction, or to a problem with an instruction, in order to put the court on notice so that a possible error may be corrected before the jury begins to deliberate. See United States v. Scarpa, 913 F.2d 993, 1020 (2d Cir. 1990); United States v. Kaplan, 832 F.2d 676, 682 (1st Cir. 1987). As we have explained:
The specificity requirement imposes a strict standard on defense counsel, but it is not a mere formalism.
Without a clearly articulated objection, a trial judge is not apprised sufficiently of the contested issue and the need to cure a potential error to avoid a new trial.
Government of V.I. v. Knight, 989 F.2d 619, 631 (3d Cir. 1993).
At the same time, the requirement that counsel make specific requests is not designed to be a trap. Our cases suggest that a request for an instruction need only be sufficiently clear to enable the trial judge to fairly evaluate it. In United States v. Werme, 939 F.2d 108 (3d Cir. 1991), for example, one of the government‘s witnesses had pled guilty to receiving the very bribe for which the defendants were on trial for giving. We held that the following statements constituted a sufficient request for a limiting instruction against using the guilty plea as evidence of the defendant‘s guilt:
[I]f they introduce that specific conviction, we‘re entitled to an instruction at a later time as far as the weight that should be given that. . . . The fact that he entered a plea to a bribery transaction involving $3,000 cannot be used to infer that we were guilty of paying the bribe.
Id. at 114. We note that counsel in Werme did not cite any precedent to justify his request. Werme nonetheless found that counsel had clearly taken issue with the offered evidence and requested a curative instruction. See id. at 115; see also Russell, 134 F.3d at 178-79 & n.4 (the purpose of federal rules governing jury instructions is to give a trial court “notice of potential error” and “the underlying basis for the objection” rather than to force parties to follow formal or technical requirements); United States v. Kwong, 14 F.3d 189, 195 (2d Cir. 1994) (“While the objection could certainly have been more focussed, we find that it was sufficient to alert the trial court and the government to the serious Braxton violation they were about to commit.“).
The events in this case raise the question of the proper allocation of responsibility between lawyer and judge. A judge should require counsel to participate in the process of crafting instructions. However, the issue here is not
On a garden-variety issue such as intoxication, where an adequate instruction is available in a standard charge book, the trial court cannot leave everything to the lawyers. The judge has an immanent obligation to research the law and craft an appropriate charge. This obligation cannot be avoided by requiring the lawyers to file legal memoranda on a pedestrian issue and then considering them not to have preserved the issue if they do not. If the requested instruction were complex and involved subtle questions of law, the situation would be different and the lawyers would have the laboring oar, but in this case we are unwilling to deem the request unpreserved merely because defense counsel did not present the Court with a copy of the Devitt & Blackmar charge.
There is a dispute, discussed infra, as to whether the record supported the request for an intoxication instruction. That is certainly a basis for requiring memoranda. However, there was a snowstorm that interfered with counsel‘s ability to present material to the District Court. Moreover, that aspect of the matter could have been argued on the basis of the record, which was fresh in everyone‘s mind. We do not believe that criminal defense counsel who are immersed in trying a complex case should be deemed to have failed to preserve an issue of this sort for neglecting to produce memoranda over a weekend, even without a snowstorm. While far from perfeсt, defense counsel‘s request was straightforward and required consideration on its merits. In these circumstances, we conclude that Davis‘s counsel properly preserved the issue for our review by making his request for an intoxication instruction clearly and specifically, even though he failed to provide precedent in support of the proposed instruction. Cf. Russell, 134 F.3d at 178 n.4 (adopting a “flexible, common-sense interpretation” of the rules for preserving objections to proposed instructions).
All of the charged crimes were specific intent crimes, and intoxication can negate specific intent. See United States v. Williams, 892 F.2d 296, 303 (3d Cir. 1989). Davis argues that he was drunk at the relevant times--his January 25 and March 2 meetings with Vittorio--and indeed all witnesses agree that he was drinking heavily on those dates.
Michael testified that, immediately before Davis saw Vittorio on January 25, Davis was “ossified . .. . [d]runk beyond drunk, slurring, he walked in with two bottles of wine.” Michael‘s testimony indicated that Davis was drunk and slurring throughout the part of the conversation that he witnessed. On his part, Vittorio testified that when he first saw Davis on January 25, “he had some jeans on with no shirt and he seemed a little disheveled. He seemed very paranoid.” Vittorio and Davis then went to a bar, Jester‘s Pub in Yonkers, to continue the conversation away from Maria and the Lanteris’ baby, and it was at the bar that Davis suggested that Vittorio “do something about” Sabol and that Vittorio should get Davis a gun. Vittorio testified, however, that Davis did not seem drunk to him. Davis himself testified that he was drinking before he called Michael and that he brought bottles of wine to the Lanteris’ apartment. He described himself аs drunk throughout the conversation with Vittorio, “rambling,” and using “what was left of my brain.”
Vittorio testified that the March 2 meeting was similar. They went to Jester‘s Pub, where Davis again asked for a gun. Davis had more than one drink (vodka and lime) during the conversation and Vittorio testified that he “already had a few drinks in him before he met me. . . . He wasn‘t staggering, because I know he does drink a lot so he probably can handle a few drinks. He was a little buzzed, definitely by the time I left by the way he was driving.” After the discussion, Davis drove Vittorio home, and Vittorio testified that “he had a few drinks and he was all over the road and I was kind of concerned about him. . . . I remember calling [Michael], telling him that Vinnie [Davis] was really drunk and I was worried that he might crash and kill himself or something . . . .” Finally, Vittorio stated
In order to justify an intoxication instruction, most courts have held that a defendant needs more than evidence of intoxication. He also needs some evidence of interference with his ability to form the relevant intent. See, e.g., United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998); United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987). In Government of the Virgin Islands v. Carmona, supra, however, we apparently set forth a different rule, as we found an intoxication instruction required in a felony murder case when the only evidence of intoxication was that the defendant had a large amount to drink.
The government argues that our Carmona holding was dicta because we reversed the defendant‘s conviction on the alternate ground that the jury instructions failed to define robbery as a specific intent crime. However, we specifically found the jury instructions defective in that they failed to explain the materiality of the intoxication evidence. Furthermore, the errors in the intoxication charge and the robbery charge were interrelated, because they both required the jury to be informed about specific intent. We rejected the government‘s claim that, because there was evidence only of intoxication and not of interference with the defendant‘s thinking, no intoxication instruction was required. See Carmona, 422 F.2d at 99 n.6. We reversed because of the “errors in the charge to the jury.” Id. at 101.
It may be that our rule is not substantially different than that of other circuits, in that it is often difficult to determine what might qualify as evidence of interference with ability to form intent. Carmona endorses the conclusion, justified by much human experience, that heavy drinking may interfere with a person‘s ability to form a specific intent. The facts in Carmona--in which the defendant was drinking heavily in a bar, left for a few minutes, and then returned to rob it--suggested that the crime could have occurred without the defendant forming a specific intent to rob.
The government argues that there was no need for an instruction because Davis‘s drinking clearly did not interfere with his ability to form the specific intent to commit the charged crimes. It maintains that Davis‘s scheme evolved over some period of time, and that he committed his crimes over many weeks. Despite his drunkenness, Davis initiated meetings with Vittorio in order to explain to him why he should not trust Sabol. While drunk, Davis told Vittorio that Sabol was a “rat,” thus evidencing that his soused mind retained this crucial fact and that he knew that telling Vittorio would further his objective.
The evidence plainly showed that Davis had a fairly complex plan to eliminate Sabol from his (Davis‘s) life. Yet Davis‘s plan to eliminate Sabol from his life did not, in the main, involve witness tampering; the witness tampering was only a small part of the plan, which was in other respects not unlawful. As we have explained, an intent to expose a person as an informant, while reprehensible, is insufficient to constitute “corrupt persuasion” under the statute. Thus, Davis‘s implacable hatred for Sabol and his consistent intent, held drunk and sober, to expose Sabol as a “rat” was insufficient to make him guilty of witness tampering.
To violate the statute, Davis had to intend to corruptly persuade. The two instances of corrupt persuasion, on
A jury could also find that Davis possessed the requisite intent despite his drinking. But, to uphold Davis‘s conviction, we would have to find that the missing instruction was harmless error--that “it is highly probable that the error did not contribute to the judgment.” Murray v. United of Omaha Life Ins. Co., 145 F.3d 143, 156 (3d Cir. 1998). We cannot say that the error was harmless on this record. See also United States v. Logan, 717 F.2d 84, 92 (3d Cir. 1983) (reversing for plain error where the trial judge had notice of the defense request for an instruction and the evidence showed that the instruction was critical to the defense‘s theory). Therefore, we will reverse Davis‘s conviction for witness tampering and remand for a new trial.
IV. Evidentiary Issues
Davis claims that the District Court abused its discretion in admitting testimony that he had been found guilty by the police department of the same acts for which he was on trial, and also abused its discretion in admitting evidence of other, unrelated misconduct. He contends that this evidence‘s prejudicial effect outweighed its probative value in contravention of
The District Court allowed the prosecution to question Davis about his departmental conviction because Davis had testified about why he was dismissed from the police department on direct examination. He had testified that he was dismissed becаuse Vittorio falsely claimed--in a
The prosecution sought to show that Davis was being less than fully truthful about the reasons for his discharge. The prosecutor led Davis through a fairly lengthy recitation of the non-firearm-related departmental charges against him, which largely tracked those before the jury.8 The court ruled that the questions were appropriate to challenge Davis‘s credibility, and instructed the jury to consider them only for impeachment purposes at the time of cross-examination.
In this case, Davis‘s answers implicated more than his credibility; they informed the jury that another body had already found Davis guilty of the conduct charged in the indictment, albeit only by a preponderance of the evidence. We note in this regard that Davis had not flatly lied when he testified that he was discharged over the gun incident, as that was one of the reasons for his discharge along with his other contacts with Vittorio.9 Thus, while probative of Davis‘s willingness to edit the full truth, the cross-examination was more prejudicial than ordinary cross-examination about a defendant‘s truthfulness with respect to collateral matters.
The government argues, however, that Davis “opened the door” to the challenged questions by testifying on direct examination that Vittorio‘s falsehood got him fired. We usually use that phrase in reference to a specifiс doctrine, “curative admissibility,” which states that once a party has introduced inadmissible evidence that may create a false
The government may find more solace in the related principle of completeness, which states that when a witness testifies to part of a conversation, statement, transaction, or occurrence, the opposing party may elicit testimony on the whole thereof, to the extent that it relates to the same subject matter and concerns the specific matter opened up. See id. at 188; United States v. Womochil, 778 F.2d 1311 (8th Cir. 1985) (allowing the government to introduce otherwise inadmissible hearsay to rebut a false impression caused by defense counsel‘s elicitation of only part of the hearsay). However, it is still unclear why the facts behind Davis‘s termination were relevant to the government‘s case, no matter how incomplete Davis‘s explanation was.
At all events, the issue before us is whether the line of questioning was properly allowed to challenge Davis‘s credibility. We conclude that the District Court did not abuse its discretion in ruling that the prosecutor could ask Davis whether there were other reasons for his termination in order to show that Davis was unwilling to tell the full truth. See United States v. Copelin, 996 F.2d 379, 383 (D.C. Cir. 1993) (noting that the government may, when appropriate, explore a defendant‘s testimony on cross-examination in order to impeach him). Given that the jury was correctly instructed to consider this testimony only for impeachment purposes, the District Court did not abuse its discretion in permitting this line of questioning.
The other challenged testimony relates to Davis‘s prior bad acts. The prosecutor first questioned Davis about a forty-four-day suspension that he had received for misappropriating departmental gasoline for use in his personal vehicle and putting a false name in a gas log. Second, he asked Davis about an incident in which Davis was found to have taken a subway pass away from a young
Davis notes that, under
Inquiry into the first two incidents was clearly proper, because they went to Davis‘s truthfulness. See Deary v. City of Gloucester, 9 F.3d 191 (1st Cir. 1993) (questions about an incident in which a police officer-witness had been disciplined for untruthfulness were appropriate under
V. Conclusion
We will reverse Davis‘s convictions for obstruction of justice, conspiracy to obstruct justice, and use of a telephone in aid of racketeering for insufficiency of the evidence. Because we conclude that Davis was entitled to an intoxication instruction, we will vacate his conviction on two counts of witness tampering and remand those counts to the District Court for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit