CORE TERMS: grand jury,
conversation, conspiracy, motive, obstruct, fifth amendment, corrupt,
obstruction, corruptly, immunity, impede, kid, indictment, guy,
endeavor, lawful, relevancy, apartment, amici, electronic surveillance,
state of mind, surveillance, appearance, probative value, omnibus
clause, furtherance, ongoing, grand jury investigation,
self-incrimination, loansharking
LexisNexis(R) Headnotes
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Headnotes
COUNSEL: Francis J. DiMento with whom DiMento & Sullivan,
Anthony M. Traini, Leppo & Traini, Norman S. Zalkind, Robert L.
Sheketoff, Kimberly Homan, David Duncan and Zalind, Sheketoff, Homan &
Rodriquez were on brief for Appellant.
Max. D. Stern and Stern & Shapiro on brief for National Network for the
right to Counsel, Amicus Curiae, and Harvey A. Silverglate, Andrew Good,
and Silverglate, Gertner, Baker, Fine, Good & Mizner on brief for
Massachusetts Association of Criminal Defense Lawyers, Amicus Curiae.
Diane M. Kottmyer, Special Attorney, Department of Justice, with whom
Stephen P. Heymann and Jeremiah T. O'Sullivan, Special Attorneys, and
Robert S. Mueller III, United States Attorney, were on brief for
Appellee.
JUDGES: Campbell, Chief Judge, Breyer, and Selya, Circuit
Judges.
OPINIONBY: SELYA
OPINION: [*983]
SELYA, Circuit Judge.
This case deals with the manner in which one member of the criminal
defense bar chose, in his own sense, to read and to act upon the bitter
letter of the law. In the bargain, the case presents important
[**2]
questions concerning the relation of an attorney to the fabric of
federal law which Congress has woven to prevent obstruction of justice.
In December 1984, a grand jury sitting in the District of Massachusetts
returned an indictment against William J. Cintolo, a practicing criminal
defense attorney, charging him with one count of conspiracy to obstruct
justice,
18 U.S.C. §§ 371, 1503, and two substantive counts of obstruction of
justice,
18 U.S.C. § 1503. After a lengthy trial, the jury found the
defendant guilty on the conspiracy count, but not guilty on the
substantive obstruction counts. Cintolo was thereafter sentenced to a
prison term, the execution of which was stayed pending appeal. We
affirm.
When the sufficiency of the proof is challenged on postconviction appeal
in a criminal case, we necessarily view the evidence in the light most
favorable to the government.
Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S.
Ct. 457 (1942);
United States v. Medina, 761 F.2d 12, 16 n.3 (1st Cir. 1985);
United States v. Tierney, 760 F.2d 382, 384 (1st Cir.),
cert. denied,
474 U.S. 843, 106 S. Ct. 131, 88 L. Ed. 2d 108 (1985);
United States v. Davis, 623 F.2d 188, 195 (1st Cir. 1980).
Drawing all legitimate inferences
[**3] which
tend to support the government's case,
United States v. Patterson, 644 F.2d 890, 893 (1st Cir. 1981),
and resolving any conflicts in the evidence against the appellant,
United States v. DeLucca, 630 F.2d 294, 300 (5th Cir. 1980),
cert. denied,
450 U.S. 983, 101 S. Ct. 1520, 67 L. Ed. 2d 819 (1981), our task is
to determine whether "the evidence in its totality, taken in the light
most flattering to the government, together with all legitimate
inferences to be drawn therefrom, [are enough that] a rational trier of
the facts could have found the appellant guilty beyond any reasonable
doubt."
Tierney, 760 F.2d at 384. See also
United States v. Drougas, 748 F.2d 8, 15 (1st Cir. 1984);
Dirring v. United States, 328 F.2d 512, 515 (1st Cir.),
cert. denied,
377 U.S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052 (1964). With that
standard in mind, we proceed to survey the evidence adduced in this
case.
I.
Cintolo's indictment and ultimate conviction grew out of the judicially
sanctioned electronic surveillance of an apartment at 98 Prince Street
in Boston's North End. These premises were used by Gennaro Angiulo
[*984] and
his associates n1 as a headquarters and office for the operation of
illegal gambling and loansharking businesses. "Loansharking"
[**4] is a
term of criminal art which may roughly be defined as the unlawful
lending of money at usurious rates of interest, repayment being
encouraged by the employment (or threatened employment) of unorthodox
collection measures, involving,
inter alia, the breaking of
bones.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Several of Gennaro Angiulo's relatives, many bearing the family
surname, figure in the events at issue. Members of the Angiulo
organization with whom Cintolo is alleged to have conspired included,
among others, Gennaro Angiulo's four brothers -- Donato, Francesco,
Michele and Nicolo -- and his son, Jason Angiulo. Wherever the context
permits, we will refer to Gennaro Angiulo simply as "Angiulo," and will
refer to other persons named Angiulo either by their first names or by
their full names.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Federal Bureau of Investigation (FBI) monitored the conversations
which took place on the premises from January 19 to May 3, 1981. The
surveillance was conducted primarily by means of hidden microphones
clandestinely emplaced within the apartment. These devices recorded
conversations between Angiulo and his confederates, including Cintolo.
In addition, a concealed
[**5] exterior
camera surreptitiously photographed persons entering and leaving the
headquarters.
What this intensive scrutiny revealed vis-a-vis the appellant can
usefully be summarized by reference to the true bill which the grand
jury returned. The indictment charged that Cintolo conspired with
Angiulo and others to violate
18 U.S.C. § 1503. n2 The gravamen of the accusation was that Cintolo
did "corruptly endeavor to influence, obstruct and impede the due
administration of justice" by befouling the proceedings of a federal
grand jury investigating the criminal activities of the Angiulo gang.
According to the indictment, Cintolo set out to accomplish this
nefarious end through the use of his position as attorney of record for
Walter LaFreniere, a witness before the grand jury, to acquire
information about the ongoing investigation for Angiulo's benefit. The
indictment further charged Cintolo with knowingly assisting Angiulo in
his efforts to inhibit LaFreniere, after the latter had been granted
immunity, from testifying truthfully before the grand jury, or from
cooperating in any way with the investigation.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 The statute provides in material part that:
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.
18 U.S.C. § 1503.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**6]
Tape recordings played for the jury at Cintolo's trial n3 established
that LaFreniere and his father-in-law, Louis Venios, possessed damaging
information linking various members of Angiulo's organization to illegal
gambling and loansharking activities. Among other things, the evidence
disclosed that both Venios and LaFreniere had been extended substantial
credit to cover unpaid gambling debts, and that each had been subjected
to exacting pressure from various of Angiulo's minions to remit the
overdue sums. When subpoenas issued to Venios and LaFreniere indicating
that the grand jury was investigating possible violations of
18 U.S.C. §§ 892-94 (making, financing, and collecting extortionate
extensions of credit), Angiulo recognized the legal peril which faced
him and his confreres. Notwithstanding that on March 12, 1981, after
first being interviewed by FBI agent Quinn, LaFreniere appeared before
the grand jury and refused to testify on fifth amendment grounds,
Angiulo remonstrated with his brother, Donato:
Remember, they're not sayin' this or this or that. They're saying,
"Angiulo" . . . "Angiulo." It might be me, you, him, him, and him,
too. Nobody knows. Under RICO, no matter [**7] who . .
. we are, if [*985]
we're together, they'll get every . . . one of us.
* * *
We've been sleepin'. . . . As soon as that . . . guy got that . . .
summons, should a got a kid like Cintolo and said, "You hire a . . .
detective and tell him to stand at that grand jury. I want to know
everybody that goes in there."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 The tape-recorded conversations which are in evidence are punctuated
throughout with profanity of every sort imaginable. We will routinely
delete (without employing any special signal) all expletives from the
portions of these conversations which we have reason to quote, unless
the use of such cursewords is in our judgment essential to place the
remarks in perspective.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Following extended discussions among Angiulo and his cohorts, assessing
the extent of LaFreniere's knowledge and speculating on the possible
foci of the grand jury's investigation, Donato Angiulo sent LaFreniere
to meet with the appellant. Shortly thereafter, the lawyer assembled
with Gennaro Angiulo and others -- not including LaFreniere -- to
discuss the sweep of the grand jury inquiry and Cintolo's newfound
"client." At this session, Angiulo told Cintolo that "about three and a
half, four weeks
[**8] ago, . .
. these guys should have gotten you and told you what I wanted." Angiulo
explained that LaFreniere had been delivering payments to him on behalf
of Venios, and that LaFreniere's name appeared on a "cuff sheet,"
i.e., a written list kept to show amounts of borrowings and
identities of borrowers. (The cuff sheet in question related to an
illegal "barbooth game" operated by Angiulo's son, Jason.)
Angiulo then told Cintolo the questions which had been propounded to
Venios before the grand jury. These questions concerned,
inter alia,
whether Venios had ever "okay[ed] Walter LaFreniere for money with
someone or anyone on the shylock." (In the vernacular, "shylock" and
"loanshark" are roughly synonymous terms.) Venios's discretion and
loyalty had been tested over time, and Angiulo appeared to have
considerable confidence in him. Yet, Angiulo was plainly apprehensive
over the family's potential exposure should LaFreniere fail to "stand
up,"
i.e., to go to jail rather than to testify truthfully before
the grand jury. Angiulo mused, "why is this worrying me? This kid owes
money on the shark. . . . He's gotta be protected. This kid should never
have gone to the grand
[**9] jury by
himself."
The appellant immediately reassured Angiulo. Cintolo told him that he
had already "got out of" LaFreniere a list of the questions asked both
in the FBI interview and in the grand jury. Cintolo then recounted these
questions and LaFreniere's responses thereto for Angiulo's benefit. The
conversation concluded with Angiulo instructing the appellant to call
LaFreniere in and size him up. Angiulo told Cintolo: "I got a decision
to make. I want to have it all in front of me. Louis I can believe. This
kid? Double talks."
On March 19, 1981, Wendy Collins, a federal prosecutor, notified
LaFreniere to report to the grand jury the following Thursday. That
evening, Cintolo spoke with Angiulo:
Angiulo: You going to explain to him that you feel that he's gonna
get immunity? There's no other way out of it, is there? Huh?
Cintolo: No. I, I'll explain it to him. Figured somebody else might
want to talk to him first. . . .
Angiulo: His father-in-law says already that as far as this kid is
concerned, one thing you can say he's a . . . man. If he's got time
to do, he'll do it. But I don't think they figure on immunity. You
understand? They're not that . . . smart. Did we find out [**10]
anything about this grand jury?
Cintolo: Nothing yet.
Angiulo: I would say you call him in, have a good talk, and give me
a reaction.
Cintolo: Yeah.
Angiulo: So that this kid understands that he might just go and do
eighteen . . . months.
Later that evening, Angiulo conferred with two of his henchmen,
Richard Gambale and Peter "Doc" Limone, soliciting their views as
to whether LaFreniere would "stand up." Apparently uneasy at what he
heard, Angiulo ordered them to kill LaFreniere:
Tell him to take a ride, Okay? Went somewhere, the kid will just say
to you, get out of the car and you stomp him. [*986]
Bing! You hit him in the . . . head and leave him. . . .
Meet him tonight. . . . Just hit him in the . . . head and stab him,
okay. The jeopardy is just a little too much for me.
FBI agents monitoring the electronic surveillance equipment overheard
Angiulo hand down this death sentence. They moved immediately to warn
the intended victim. LaFreniere acknowledged that he had been contacted
and was scheduled to meet with "someone" later that day. He refused to
disclose the identity of the person who had made the overture, but
Gambale subsequently revealed himself to the government's
[**11]
electronic ear as the mystery caller, informing Angiulo that LaFreniere
had resisted his suggestion that they meet "for a drink."
On March 20, Angiulo was told that LaFreniere had been attempting to
reach Cintolo. Angiulo advised the lawyer that LaFreniere had been
tipped about the "contract" which had been placed on his life:
The Feds called him and said to him, "we got an informant in the
North End. He just informed us that you have been placed on the hit
list down there . . . ." Words to that effect.
Cintolo's only response to this grisly piece of news was to mention
calmly that he had instructed LaFreniere to talk with no one, and to
refer all calls to him. Angiulo continued:
They, supposedly, they told him, "look, what we're telling you,
don't repeat it, 'cause you'll blow the cover of the guy we got down
there talking to these people who knows what it's all about." Very,
very interesting. Because, nowhere along the line did anyone talk
about handling it. More important than that, if someone did talk
about it, though . . . no way would they talk where it would be,
aah, susceptible to anyone excepting individuals that would be
interested in it to begin with.
This particular
[**12]
conversation concluded with Angiulo instructing Cintolo to meet with
LaFreniere again and "to evaluate [the situation] very carefully."
There followed a series of discussions at the apartment in which Angiulo
voiced grave (and mounting) concern over his organization's
vulnerability vis-a-vis LaFreniere. The recurring theme of each
conversation, significantly, was that LaFreniere be coerced into
"standing up" -- to serve an eighteen month sentence for contempt --
rather than to accept immunity gracefully and testify freely before the
grand jury. Angiulo ordered that pressure of divers kinds be brought to
bear. At one juncture, he suggested that LaFreniere be told:
Hey you, you answer these . . . questions you're gonna get yourself
in trouble, you're gonna get everybody in trouble. Do yourself a . .
. favor. . . . Go to the can until we find out a little more about
this . . . thing.
At another point, Angiulo instructed William "Skinny" Kazonis, another
crony, that he was not to allow LaFreniere to tell the truth under any
circumstances:
He's gotta be taken out and told . . . he's not answering. . . .
First, we're gonna try to find out, to know a little more than what
they found. [**13]
Second, it's your . . . responsibility to make sure this kid keeps
his . . . mouth shut . . . .
Much the same sentiments were communicated to Venios:
Angiulo: He's got immunity.
Venios: Yah.
Angiulo: In plain English, he either answers or he's going to jail.
Venios: . . . . to jail, yah.
Angiulo: We're all set up for him?
Venios: Yah.
During this same meeting, Angiulo explained that his own son, Jason, was
in an equivalent position. "He can answer until they ask him the $64
question, which is the question that will get somebody in trouble. After
that, just pack it in and go to the can." Angiulo repeatedly reminded
Venios of the jeopardy which any cooperation by LaFreniere with the
grand jury would pose, and for good measure added a thinly-veiled
threat:
If this kid has got the smarts, I'm gonna tell him to go in and
answer some of these questions. Then Billy will defend [*987] him
for perjury. What . . . is the difference whether he does eighteen
for the grand jury or he gets three years for perjury?
Angiulo later told the appellant of Venios's continued assurances that
LaFreniere would "stand up." According to Angiulo, Venios had been
ordered to remind his son-in-law
[**14] that
this was no avuncular request, but a command from the organization: "You
got to tell this kid that we said it, not you. Us. No guy will go to the
can here for any reason." So, Angiulo indicated, Cintolo's "client"
fully appreciated the personal risk he would run by cooperating with the
grand jury.
In the course of the conversation, Angiulo remarked to Kazonis, "Drink
up, Skinny, you might go away tomorrow . . . obstructing justice. Right,
Billy?" The following exchange then took place:
Cintolo: . . . . And I went over that with him very, very carefully.
That the maximum you can do is eighteen months or the life of the
grand jury, whichever is shorter.
Unknown Male: Yeah.
Angiulo: Coming from you.
Cintolo: And then he said to me, "how long does the grand jury sit?"
I said, "the grand jury sits for thirty-six months."
Angiulo: Well he's thick, he doesn't understand about thirty-six
months. But you gotta understand, coming from you that's the story.
Coming from him, that's saying "Listen I was there, . . ., and no
matter where you go, might take, might take a week, two weeks, three
weeks to get to you, but we'll get to ya." Do you understand? Do you
understand what I'm [**15]
talking about? The difference.
Kazonis: Well I convinced him already, for tomorrow forget about. .
. .
Angiulo: In fact, what he wanted to do was, when he got through with
Skinny, he wanted to just go home and get his . . . underwear and
go, go, go away.
On March 26, in Cintolo's absence, Angiulo described how LaFreniere had
reacted to Kazonis's importunings:
"The lawyer told me I had to go do thirty-six months. I told my
wife, I gotta go away for three years. Crazy, my lawyer expects
that. Don't tell me," he says, "[the] lawyer talked to me; he
told me to go away for thirty-six months." (Emphasis supplied).
On March 31, the appellant met briefly with Angiulo to plot strategy. By
this time, it was obvious that Jason -- who had been subpoenaed by the
grand jury -- was a target of the investigation and would not be offered
immunity. Cintolo was, according to the plan which he and Angiulo had
mapped out, to represent Jason as well as LaFreniere. The lawyer
suggested that he could "have [Jason] plead the fifth." To this, Angiulo
responded:
Not yet, we shouldn't. No, sir. We didn't learn nothing. You
understand, I want the questions specifically, and somewhere along
the line [**16] he'll
be indoctrinated by me, if you wanna call it that.
When Cintolo said that he would "like to try to appeal" any court order
disqualifying him from dual representation of both of these "clients,"
Angiulo rejoined: "Why would you like to do anything? We are here only
to discuss all of the ultimate measures to tell them to go [perform an
anatomically unlikely act upon] themselves."
On April 1, LaFreniere received immunity, thereby stripping him of the
fifth amendment's protection against compelled self-incrimination.
Nothing daunted, Cintolo continued to participate in discussions with
Angiulo and his subordinates in which the anticipated commission of
contempt before the grand jury was frankly acknowledged as an objective.
At one point Cintolo remarked, "they've got to figure if they can
isolate [LaFreniere] in a sense . . .
if they can pull him away from
me, . . . . Okay.
If they can pull him away from me, then maybe
they get something out of him. Whether he's gonna voluntarily do it,
or just by sheer ignorance he's gonna blurt it out. I think that's what
they want." (Emphasis supplied). Moments later, Cintolo added:
[*988] I
talked to him. . . . to evaluate what [**17] he's
saying to me -- in fact, it was like I do with everybody: instill
confidence in them, you know. I kept telling him, "I might not be
able to help you out, but I can tell ya, I'll fight like a son of a.
. . ." To get him into a confident situation, making him think
that we can do what we're saying we can do, and all of a sudden
smack, he's a . . . goner. (Emphasis supplied). n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 During this same conversation, Cintolo sought Angiulo's permission to
"change the subject," and proposed a scheme whereby he would use his
position as an attorney to shield members of Angiulo's illegal gambling
and loansharking enterprises from their just deserts as tax evaders. The
admissibility of this evidence is discussed
infra at part IV (3).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Discussions regarding the grand jury investigation continued throughout
the month of April. The appellant was a regular participant. In one
conversation, the group attempted to identify an individual whom they
had spotted and believed to be an informant. In response to a query by
Cintolo, Angiulo gave the following chilling command: "I don't want to
know about this guy no more. I want [Kazonis] to go see him. . . . We'll
. . . kill him once and
[**18] for
all."
On April 23, LaFreniere appeared before the grand jury and, reading a
statement prepared for him by Cintolo, refused to testify.
Notwithstanding the immunity which had been conferred, the refusal was
predicated on fifth amendment grounds. At a hearing on the government's
ensuing motion to compel, the duty judge dismissed Cintolo's argument
that the immunity bestowed upon LaFreniere was somehow inadequate as
"clearly frivolous." n5 Upon leaving court, the appellant went directly
to 98 Prince Street. Angiulo greeted him with the question, "Is he in
jail, just say yes or no?" Cintolo responded, "Not yet." The two men
then dissected what had transpired at the grand jury in minute detail.
At one point, the appellant informed Angiulo that the grand jury had
queried LaFreniere about the contract on his life, volunteering that "I
think they know about Richie [Gambale] and Peter [Limone]." When Cintolo
mentioned that LaFreniere had already admitted having received an
"invitation" to "meet," Angiulo remarked that Gambale had indeed
ventured such an initiative. " The dirty part of this, there's no
fiction here. They don't have to fictionalize. He'll give them the
pieces. They'll put
[**19] the
puzzle together." Then, Cintolo adverted to LaFreniere's professed
desire to answer a few of the grand jury's questions. The following
exchange took place:
Angiulo: That's why I think it's starting to enter his mind, Billy.
I don't like the answers.
Cintolo: Maybe a couple of times, couple of . . . "Why couldn't I
answer these questions?"
Angiulo: Your answer to him is gonna be, when he says that to you,
"Hey Walter, let me tell you something, huh: don't ever come back to
haunt me. With one of these questions, you're gonna commit perjury
because instead of doing eighteen months you gonna . . . go for five
years." But how you give it back you better be very . . . careful. .
. . You hear me: very important, Billy, you gotta feel him out.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 We note, at this juncture, that we have never been offered any
plausible explanation of how -- if at all -- the grant of immunity to
LaFreniere was deficient. The district court and the jury were similarly
unenlightened. Cintolo had argued, and persists in contending on this
appeal, that the grant of immunity was somehow "not coextensive" with
LaFreniere's fifth amendment rights,
i.e., that the immunization
did not foreclose the possibility that inconsistencies with prior grand
jury testimony could subject him to charges of perjury. This argument
was -- and is -- a transparently invalid one. The law is settled that a
grant of immunity precludes the use of immunized testimony in a
prosecution for
past perjury (though affording no protection
against
future perjury).
See, e.g.,
In re Bianchi, 542 F.2d 98, 100 (1st Cir. 1976). This well
established law, coupled with Cintolo's candid admissions to Angiulo
that the tactic would not save LaFreniere from contempt charges,
undermines the credibility of the appellant's claim that he gave the
legal advice in question to his nominal client (LaFreniere) in good
faith.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**20]
On June 2, 1982, LaFreniere was held in contempt in federal district
court and was sentenced to an eighteen month term of incarceration,
which he served in full. Cintolo
[*989]
represented him throughout the entire period of his immurement. He was
disqualified by court order, however, from continuing to appear for
Jason Angiulo.
At his own trial, appellant testified that, although he was aware of
Angiulo's involvement in illegal businesses, he had not acted with the
intent corruptly to obstruct or impede justice while representing
LaFreniere. To the contrary, he claimed to have been cooperating -- or
pretending to cooperate -- with Angiulo solely to enhance his ability to
counsel his true client (LaFreniere). The jury obviously disbelieved
these assertions and drew a different set of inferences.
II.
From the facts established at trial, a sampling of which we have set out
above, we find overwhelming evidence of a conspiracy among Angiulo and
his associates to pressure LaFreniere -- at all costs and by the nearest
means -- so as to prevent his testifying before the grand jury; in
short, a conspiracy to violate
18 U.S.C. § 1503. Drawing reasonable inferences from the evidence in
the light most
[**21]
hospitable to the government, we have no difficulty recognizing that the
defendant lent his informed assistance to this conspiracy. Indeed,
Cintolo's counsel conceded as much at oral argument of this appeal, when
he stated:
Cintolo knew that Gennaro Angiulo was doing his level best to
influence Walter LaFreniere through other people, including Walter
LaFreniere's father-in-law, Louis Venios, to persuade Walter
LaFreniere to "stand up" -- in the vernacular, to refuse to testify
-- even though immunized, and to do an eighteen month sentence for
contempt. There is no question that the evidence makes out a
conspiracy, of which Gennaro Angiulo was at the head, to influence
LaFreniere. And there is no question that Cintolo, knowing that,
continued to represent LaFreniere . . . partly with a purpose to
gain time and partly with a purpose to obtain information. Secondly,
he passed on such information as he did have to the Angiulos -- as,
for example, what questions were being asked [in the grand jury].
Indeed, most everything he did played into the hands of Gennaro
Angiulo.
Cintolo argues, however, that appearances are deceiving in this case;
that his authentic motive in pursuing this perilous
[**22] course
of conduct was to obtain information from Angiulo that would assist him
in representing the interests of LaFreniere. He portrays himself as a
double agent of sorts, using the ringleader of the mob as the ringleader
was attempting to manipulate him. While admitting that his behavior
conferred benefits on Angiulo and on the hoped-for conspiracy of
silence, the appellant maintains that those rewards were "incidental" to
his obligation to represent LaFreniere as he thought best. Inasmuch as
he did not intend to obstruct justice, the thesis runs, he cannot be
guilty of conspiring to commit the substantive offense.
The short answer to this plaint is that the jurors, armed with
considerable circumstantial evidence to support their assessment of the
situation, deemed these protestations to be apocryphal. The slightly
longer -- but no less damning -- answer is that the self-serving gloss
which appellant thus places on the evidence manifestly misapprehends
both the jury's fact-finding function and our role in the review of the
verdict. The jury was reasonably entitled to disbelieve Cintolo's
testimony regarding his motives and to credit the (entirely plausible)
contrary interpretation
[**23] urged
by the government.
E.g.,
United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971)
("A trier of fact is not compelled to accept and believe the self
serving stories of vitally interested defendants. Their evidence may not
only be disbelieved, but from the totality of the circumstances,
including the manner in which they testify, a contrary conclusion may be
properly drawn.").
Accord
United States v. Machado, 804 F.2d 1537, 1549 (11th Cir. 1986);
United States v. Allen, 797 F.2d 1395, 1399 (7th Cir.),
cert. denied,
479 U.S. 856, 107 S. Ct. 196, 93 L. Ed. 2d 128 (1986);
United States v. Robinson, 774 F.2d 261, 278-79 (8th Cir. 1985).
Given that appellate oversight of this conviction
[*990] must
presume that the jury bought what the prosecution was selling, and
recognizing that, in order to convict, the evidence need not exclude
every reasonable hypothesis of innocence, we find adequate record
evidence to sustain the conclusion that Cintolo knowingly and
intentionally furthered the corrupt ends which Angiulo and his
companions sought to achieve. Indeed, the evidence makes abundantly
clear the sentient, purposeful participation by Cintolo in the scheme to
envelop LaFreniere in pressure and intimidation
[**24] so as
to forestall any cooperation on his part with the grand jury. The fact
that this participation was clothed, at least in part, in the mantle of
superficially "professional" conduct does not exonerate the lawyer from
culpability.
We understand the defendant's argument that all of his conduct in the
course of representing LaFreniere -- meeting with Angiulo and his crew,
shuttling information from the grand jury investigation to them, urging
LaFreniere to invoke the fifth amendment privilege long after immunity
had dissipated it -- was performed with LaFreniere's consent. But, even
were we inclined to credit the claim that LaFreniere
voluntarily
acceded to actions by Cintolo aimed at sending him to jail in order to
protect the Angiulo clan, no effective defense avails to Cintolo as a
result. In any realistic light, the most authentic victim of Cintolo's
behavior was not his nominal client, but the due administration of
justice. When federal law was violated, LaFreniere was powerless to
legitimate the infraction by consenting to the commission of a crime.
This notwithstanding, appellant and the amici beseech us to announce an
unprecedented rule of law designed, they contend,
[**25] to
insulate lawyers from encroachments on the "zealous representation" of
clients accused of crime. So long as an attorney tenders a facially
legitimate explanation for conduct performed in the course of his
defense of a client, they urge, a fact-finder must evaluate the behavior
on that basis. In constructing this sort of paradigm, the
lawyer's word alone creates what amounts to an irrebuttable presumption
which debars the jury -- despite the existence of mounds of
circumstantial evidence -- from drawing contradictory inferences as to
the attorney's motives or intent. Put another way, if defense counsel's
actions of and by themselves do not amount to a crime, then a
fact-finder may not criminalize the conduct on the basis of conclusions
reached, no matter how reasonably, about
why the actions were
performed. Hidden motivations, howsoever corrupt, remain forever hidden
in a world where veniremen are not allowed to peer beneath the surface
of things.
We find no support in precedent, principle, or policy for such an
anti-lapsarian rule, and decline to cleave so deep a chasm in the
criminal law for the exclusive benefit of attorneys who knowingly
involve themselves in the corruption
[**26] of
their clients. As important a role as defense counsel serve -- and we do
not minimize its importance one whit -- the acceptance of a retainer by
a lawyer in a criminal case cannot become functionally equivalent to the
lawyer's acceptance of a roving commission to flout the criminal law
with impunity. A criminal lawyer has no license to act as a
lawyer-criminal.
The omnibus clause of
28 U.S.C. § 1503 makes it a felony to "corruptly endeavor to
influence, obstruct or impede . . . the due administration of justice."
We have previously held that "an effort to alter the testimony of a
witness for corrupt purposes is plainly an endeavor to impede the due
administration of justice."
United States v. Tedesco, 635 F.2d 902, 907 (1st Cir. 1980),
cert. denied,
452 U.S. 962, 101 S. Ct. 3112, 69 L. Ed. 2d 974 (1981). It is
altogether clear that interference with a grand jury investigation fits
snugly within the contemplation of § 1503.
E.g.,
United States v. Howard, 569 F.2d 1331, 1337 (5th Cir.),
cert. denied,
439 U.S. 834, 99 S. Ct. 116, 58 L. Ed. 2d 130 (1978);
United States v. Walasek, 527 F.2d 676, 678 (3d Cir. 1975);
United States v. Campanale, 518 F.2d 352, 366 (9th Cir. 1975),
cert. denied,
423 U.S. 1050, 96 S. Ct. 777, 46 L. Ed. 2d 638 (1976);
United States [**27] v. Hubbard,
474 F. Supp. 64, 77 (D.D.C. 1979). It is equally clear, from
[*991] both
the plain meaning of the statutory language and the caselaw interpreting
it, that § 1503 criminalizes conduct which obstructs or impedes the due
administration of justice, provided such conduct is undertaken with a
corrupt or improper purpose.
We have held before, and reaffirm now, that "if reasonable jurors could
conclude, from the circumstances of the conversation[s], that the
defendant had sought, however cleverly and with whatever cloaking of
purpose, to influence improperly a [witness], the offense was complete."
Tedesco, 635 F.2d at 907 (quoting
United States v. Lazzerini, 611 F.2d 940, 941 (1st Cir. 1979)).
See also
United States v. Lazzerini, 611 F.2d 940, 941 (1st Cir. 1979)
(quoting
United States v. Roe, 529 F.2d 629, 632 (4th Cir. 1975)).
Correct application of § 1503 thus requires, in a very real sense, that
the fact-finder discern -- by direct evidence or from inference -- the
motive which led an individual to perform particular actions. As Justice
Holmes once aptly observed, "intent may make an otherwise innocent act
criminal, if it is a step in a plot."
Badders v. United [**28] States,
240 U.S. 391, 394, 60 L. Ed. 706, 36 S. Ct. 367 (1916). The
appellant's suggestion that the jury be precluded, as a matter of law,
from drawing its own (reasonable) conclusions as to why any defendant --
or, more narrowly put, a lawyer-defendant -- committed acts not unlawful
in and of themselves would do enormous violence to the statute and play
unwarranted havoc with its enforcement.
We decline the invitation to rewrite the obstruction statute in such a
sweeping fashion. Adoption of the rule which the appellant and the amici
urge upon us would effectively divest the jury of the critical
fact-finding role which congress, in the enactment of § 1503,
specifically entrusted to it. Professors LaFave and Scott accurately
note that "there are a number of instances in which . . . inquiry into
why an act was committed is crucial in determining whether or not the
defendant has committed a given crime." W. LaFave & A. Scott,
Handbook on Criminal Law 204 (1972). We find such an inquiry to be
appropriate, indeed statutorily required, in the precincts patrolled by
18 U.S.C. § 1503. n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Having made the argument that a jury may never draw inferences of
corrupt intent from a lawyer's actions performed within the scope of an
attorney-client relationship, the appellant nevertheless concedes that
"attorneys . . . whose nonprotected conduct constitutes an endeavor to
obstruct justice within the purview of the omnibus clause may be
prosecuted under § 1503." The amici likewise hypothesize that an
attorney who sought to delay the grand jury, in order to afford his
client additional time lawlessly to flee the jurisdiction, could be
subject to prosecution under the obstruction statute. We find those
positions in accord with our own reading of § 1503 -- and curiously at
variance with the defense's central thesis. It seems to us that these
concessions belie the notion that a lawyer's actions in the course of
representing a client are presumptively immune from a finding of
malevolent intent sufficient to criminalize the conduct.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**29]
Once it is conceded that the existence
vel non of intent under §
1503 is a question of fact for the jury, it remains to define the
parameters of behavior that can fairly be labelled as "corrupt," ergo,
criminal under the statute. General definitions tend to be circular. It
has been said, for instance, that "the term 'corruptly' is the specific
intent of the crime."
United States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985).
Yet, the term is admittedly susceptible to different meanings in
different contexts.
See
United States v. Partin, 552 F.2d 621, 642 n.26 (5th Cir.),
cert. denied,
434 U.S. 903, 54 L. Ed. 2d 189, 98 S. Ct. 298 (1977). Courts have
tended to interpret the requirement broadly, holding that it applies to
the ends of an actor's conduct rather than merely the means.
E.g.,
United States v. Howard, 569 F.2d at 1334-35 ("the omnibus
clause aims at obstruction of justice itself, regardless of the means
used"), and cases cited therein. Thus, any act by any party -- whether
lawful or unlawful on its face -- may abridge § 1503 if performed with a
corrupt motive.
Our sister circuits have spoken to this subject with a single voice.
"Any corrupt endeavor whatsoever, to 'influence, intimidate
[**30] or
impede any . . . witness, . . .' whether successful or not, is
proscribed by the obstruction of justice statute."
Catrino [*992] v. United
States, 176 F.2d 884, 887 (9th Cir. 1949) (footnote omitted).
Accord
Falk v. United States, 370 F.2d 472, 476 (9th Cir. 1966),
cert. denied,
387 U.S. 926, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967). "The statute
reaches all corrupt conduct capable of producing an effect that prevents
justice from being duly administered, regardless of the means employed."
United States v. Silverman, 745 F.2d 1386, 1393 (11th Cir. 1984).
See also
United States v. Howard, 569 F.2d at 1335 (similar);
Samples v. United States, 121 F.2d 263, 266 (5th Cir.) (§
1503 is "broad enough to cover any act, committed corruptly, in an
endeavor to impede or obstruct the due administration of justice."),
cert. denied,
314 U.S. 662, 62 S. Ct. 129, 86 L. Ed. 530 (1941). These
formulations sound a common theme: they uniformly signal that means,
though lawful in themselves, can cross the line of illegality if (i)
employed with a corrupt motive, (ii) to hinder the due administration of
justice, so long as (iii) the means have the capacity to obstruct.
The appellant and the amici pay lip service to this principle, but
maintain
[**31] that
different considerations come into play where criminal defense lawyers
are concerned. In those purlieus, they assert, a corrupt motive may not
be found in conduct which is, itself, not independently illegal. We
regard this argument as being in conflict with persuasive caselaw, and
as wrongheaded from the standpoint of sound public policy.
In
Cole v. United States, 329 F.2d 437 (9th Cir.),
cert.
denied,
377 U.S. 954, 84 S. Ct. 1630, 12 L. Ed. 2d 497 (1964), the court
affirmed the § 1503 conviction of an individual who had pressed a grand
jury witness to stand mute by invocation of his fifth amendment
prerogative. The defendant's motive, the prosecution contended, was to
protect both himself and a close friend from the slings and arrows of a
pending grand jury investigation. The Ninth Circuit noted that: "the
constitutional privilege against self-incrimination is an integral part
of the due administration of justice, designed to do and further
justice, and to the exercise of which there is an absolute right in
every witness."
Id. at 443. Nevertheless, while "[a] witness violates no duty
to claim it, . . . one who bribes, coerces, forces or threatens a
witness to claim it, or advises with corrupt motive
[**32] the
witness to take it, can and does himself obstruct or influence the due
administration of justice."
Id.
Cole, to be sure, did not involve a lawyer-client relationship.
Yet the case explicitly suggested that an attorney who
corruptly
advised a client to wind the toga of the fifth amendment about him could
well be subject to obstruction of justice liability notwithstanding any
"privilege" he might claim to have in rendering such advice.
Id. at 440 (dictum). After all, the highminded purposes which
underlie the constitutional protection are disserved, not furthered, if
a third party -- lawyer or not -- has carte blanche to manipulate an
individual's use of the privilege corruptly to impede the due
administration of justice.
To like effect is the decision in
United States v. Cioffi, 493 F.2d 1111 (2d Cir.),
cert.
denied,
419 U.S. 917, 42 L. Ed. 2d 155, 95 S. Ct. 195 (1974). There, the
Second Circuit affirmed a conviction for conspiracy to obstruct justice.
The defendant, Cioffi, was a man who had tried to induce a grand jury
witness, one Scheer, to take the fifth amendment rather than inculpate
certain third parties who were under investigation for loansharking. The
court observed that, "knowing
[**33] that
the loan had in fact been made and the extortionate interest paid, all
to the personal knowledge of Scheer, an endeavor to induce Scheer . . .
to plead the Fifth Amendment for the purpose of protecting [the shylock]
was obviously corrupt."
Id. at 1119. The Second Circuit flatly rejected the
hypothesis that advising a witness to do that which he possessed a
constitutional right to do could not be criminalized. In charting such a
course, the court reaffirmed the prevailing principle that "the focus
[under
18 U.S.C. § 1503] is on the intent or motive of the party charged as
an inducer. The lawful behavior of the person invoking the [Fifth]
Amendment cannot be used to protect the
[*993]
criminal behavior of the inducer."
Id. n7
Cioffi, like
Cole, stands ultimately for the proposition that otherwise lawful
means can transgress § 1503 if employed with the corrupt intent to
accomplish that which the statute forbids.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 The Second Circuit addressed this issue again in
United States v. Fayer, 523 F.2d 661 (2d Cir. 1975). There,
the defendant, an attorney representing targets of a grand jury
investigation, advised a non-client witness who possessed damaging
information not to testify before the grand jury. He claimed that he was
merely offering the witness legal advice. The trial judge, sitting
without a jury, found reasonable doubt as to the lawyer's motives in
urging this course of action.
Id. at 663. On that basis, he acquitted Fayer. But, the judge
noted that "if the whole thing were set up to protect the [clients]
rather than [the witness], I would have found [the attorney] guilty . .
. ."
Id. On appeal, the Second Circuit held that it was
constrained to affirm on account of the district court's findings of
fact.
Id. Nevertheless, the panel took pains to point out that
advising a witness to plead the fifth amendment could violate § 1503 if
done in whole or in part for an improper purpose.
Id. In
illustrating the sort of motive which it thought could support an
obstruction charge in such a context, the court cut fairly close to the
bone of contention before us, mentioning examples like "helping
[clients] to cover up crimes to avoid indictment,"
id., and
"acting with knowledge of crimes committed, as opposed to giving
innocent counsel."
Id. at 664.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**34]
These cases are instructive for the purposes at hand. Notwithstanding
that the means used by the appellant might be regarded as lawful, if
viewed in a vacuum, clear proof of improper motive could surely serve to
criminalize that conduct. And, Cintolo's corrupt intent seems especially
evident when contrasted with the actions scrutinized in the foregoing
cases. Viewing the facts and the inferences therefrom most favorably to
the government, as we are required to do, there was an ample basis for
the jury to find -- in significant contradistinction to
Cole and
Cioffi -- that the appellant was not counseling LaFreniere to
invoke legitimate rights for his own benefit. On this unhappy record, a
fact-finder could well have believed beyond a reasonable doubt that
Cintolo acted as part of a high pressure, no-holds-barred campaign to
induce his nominal client, LaFreniere, to commit a criminal contempt.
Though Cintolo's acts in fostering the intimidation of LaFreniere were
not in themselves
overtly unlawful, they seem to us, in this
context, to have been fully actionable under
18 U.S.C. § 1503.
A few simple illustrations may be useful. Purchasing a chisel at a
hardware store is,
[**35]
usually, a lawful act, commonplace in the extreme. Yet, if an individual
were to purchase the same chisel at the same hardware store with the
avowed (evil) purpose that it be used as part of a planned break-in by
persons in league with him, the iniquitous motive alone would
transmogrify the innocent transaction into an overt act carrying
undeniable criminal consequences. To step even closer to the case at
bar, it is lawful -- again, commonplace -- to offer an acquaintance a
lift to the airport. Nevertheless, if a person were to provide such
transportation at precisely the same time and in precisely the same way,
but with the corrupt purpose that the prospective passenger be spirited
away so as to thwart his scheduled appearance before a grand jury, the
impure motive alone would convert the otherwise - lawful gesture into an
outright obstruction of the grand jury's mission -- an obstruction
which, most would concede, would be criminalized by § 1503.
That sort of alchemy -- the conversion of innocent acts to guilty ones
by the addition of improper intent -- is what this case is all about. In
the most fundamental sense, the "advice" given by Cintolo in the
manipulation of his own client
[**36] was a
commodity no different than the chisel or the free ride. It was legal to
traffic in the wares, but illegal corruptly to put them to felonious
use. Nothing in the caselaw, fairly read, suggests that lawyers should
be plucked gently from the madding crowd and sheltered from the rigors
of
18 U.S.C. § 1503 in the manner urged by appellant and by the amici.
Nor is there any sufficient public policy justification favoring such a
result. To the contrary, the overriding policy interest is that "the
attorney-client relationship cannot . . . be used to shield or promote
illegitimate acts . . . ."
United States v. Klubock, No. 86-1413,
slip op. at 11 n.12 (1st Cir. March 25, 1987). "Attorneys, just
[*994] like
all other persons, . . . are not above the law and are subject to its
full application under appropriate circumstances."
Id. at 21
(citation omitted).
The authority upon which Cintolo relies for a contrary conclusion is
readily distinguishable. In
United States v. Herron, 28 F.2d 122 (N.D. Cal. 1928), for
example, the court reversed the conviction of an attorney who had
advised a witness to plead his fifth amendment privilege, stating that
it was not "the policy of the law
[**37] to
make criminal, no matter what the motive might have been, the advising a
witness to do that which was lawful and
would in fact have
protected the witness from disclosing self-incriminating matter."
Id. at 123 (emphasis original). We note, first, that the
conclusion reached by the district court in
Herron is a dubious
one.
See, e.g.,
Cioffi, 493 F.2d at 1119;
Cole, 329 F.2d at 440, 443. Moreover,
Herron
distinguishes itself from the instant case because the lawyer-defendant
advised a witness to invoke a right against compelled self-incrimination
which the witness (irrespective of his actual guilt or innocence) in
fact possessed. Cintolo, by contrast, helped press LaFreniere to invoke
a supposed right which -- as Cintolo well knew -- was no longer
LaFreniere's to claim. The distinction is obvious; it is predicated not
upon the actual guilt or innocence of the recipients of the advice, but
upon the divergent motives of the advisors. To urge another -- whether
guilty or not -- to plead the fifth amendment because immunity has been
withheld and because a reasonable fear of self-inculpation exists is one
thing. It is quite another to advise a fully immunized
[**38] client
to claim fifth amendment rights which are no longer live, not because of
any fear of self-inculpation, but for the sole purpose of shielding
other individuals. Cintolo falls at the latter pole.
The remaining cases hawked by the appellant offer no sturdier support
for his position. In
Maness v. Meyers, 419 U.S. 449, 42 L. Ed. 2d 574, 95 S. Ct. 584
(1975), for instance, the court reversed the conviction of an
attorney who had counseled his client not to respond to a subpoena duces
tecum in a civil case, citing fifth amendment grounds. The Court noted,
however, that the lawyer had acted "in the good-faith belief that if
[his] client produced the materials he would run a substantial risk of
self-incrimination."
Id. at 455. See also
id. at 465-66 ("The privilege against compelled
self-incrimination would be drained of its meaning if counsel . . .
could be penalized for advising his client in good faith to assert
it."). The Court quoted an earlier decision,
In re Watts, 190 U.S. 1, 29, 47 L. Ed. 933, 23 S. Ct. 718 (1903),
to the effect that "if an attorney acts in good faith and in the honest
belief that his advice is well founded and in the just interests of his
client, he cannot be held liable for error in judgment."
419 U.S. at 467. [**39] The
clear implication of these comments is that, in the absence of a
facially legitimate and bona fide basis for interposition of the fifth
amendment,
i.e., in the absence of good faith on the lawyer's
part, guilt may be predicated on the conduct. In our view, we are
scrupulously faithful to
Maness and to
Watts, insofar as
they have pertinence, when we lay stress on the evidence from which the
jury could logically have inferred Cintolo's corrupt motive, want of
good faith, and lack of any "honest belief" that LaFreniere had any
residual right, after receiving immunity, to maintain his silence -- or
that doing so would benefit LaFreniere in any legally cognizable sense.
Appellant's reliance on
McNeal v. Hollowell, 481 F.2d 1145 (5th Cir. 1973), cert.
denied,
415 U.S. 951, 39 L. Ed. 2d 567, 94 S. Ct. 1476 (1974), is likewise
misplaced. The language of that decision undermines, rather than
supports, the defense's reading of § 1503. In
McNeal, the court
acknowledged counsel's right to contact a codefendant to ensure that the
latter knew of his constitutional rights before testifying against
counsel's client. The court "start[ed] from the premise that an
individual may not bribe, coerce,
[**40] force,
or threaten a witness to claim the privilege against
self-incrimination,"
id. at 1152, and went on to observe that "none of these forms
of conduct has been even tangentially attributed
[*995] to
[defense] counsel."
Id. What springs instantly to mind, of
course, is that precisely the type of conduct which was not "even
tangentially attributed" to the defense attorney in
McNeal lies
at the very heart of the government's case against Cintolo. We do not
read
McNeal as intimating in any way that a lawyer should receive
kid-glove treatment under § 1503.
There is yet another aspect to the pleas which we have heard, an aspect
rooted more in policy than in the caselaw. Both appellant and the amici
focus a portion of their arguments on the fact that Cintolo's
representation of LaFreniere included many traditional lawyering
functions --
e.g., the filing of motions, appearances in court,
and the like -- the potential criminalization of which under § 1503
could imperil the effectiveness of the defense bar. They point out, with
some persuasive force, the dangers of permitting jurors to draw
inferences from such "traditional" conduct as to the barrister's
underlying motive.
[**41] We
need not enter this thicket today. Even if we were inclined to credit
the surrealistic view that juries should
never be permitted to
draw inferences of corrupt intent solely from "traditional" attorney
conduct performed in the course of representing a criminal defendant --
and we are plainly not so inclined,
see supra -- this case would
present no occasion for the implementation of such a rule. Here, as we
have already noted, Cintolo's representation of LaFreniere was in no
sense "traditional;" the evidence makes manifest that he acted less as
an attorney for LaFreniere than as a minion of Angiulo. Indeed, the jury
heard recorded conversations which revealed, from Cintolo's own mouth,
that he was laboring mightily to get his ostensible client
into
jail, rather than to keep him out of it. Far from using the wonted tools
of the lawyer's trade to ameliorate LaFreniere's legal position, the
defendant helped Angiulo to place him in a vise and to turn the screw.
An attorney who spurns the interests of his own client and conspires to
subject him to a prison term for the benefit of a third party is not
performing the traditional functions of defense counsel. Such an
attorney
[**42] is
not, on any view of the matter, entitled to special perquisites and
privileges.
Whatever the contours of the line between traditional lawyering and
corrupt intent may be, they must inevitably be drawn case-by-case. The
question of whether an attorney who does no more than file motions, make
court appearances, and the like -- however dilatory they may seem,
however much they may slow the progress of a grand jury probe -- can
ever be subject to § 1503 liability for such conduct alone, is not
before us. We recognize the dangers that are present if prosecutors can
be allowed to inquire into motive in such confined circumstances, and we
respect the importance of allowing defense counsel to perform legitimate
activities without let or hindrance. We do not see this case, however,
edging into that forbidden terrain. Where, as here, it is proven beyond
any reasonable doubt that a lawyer has purposefully acted as an advisor
to third-party criminals and as a participant in the illegal plot which
they have hatched, that he has served knowingly and willingly as a
go-between linking the conspirators to his nominal client, that he has
performed functions apart from (and alien to) the traditional
[**43] chores
of a lawyer, and that he has done all of this with the corrupt aim of
frustrating a federal grand jury on its appointed rounds, then he cannot
hide behind his law degree when the presence or absence of the essential
elements of an obstruction of justice charge are considered. Having
called the tune, Cintolo cannot be excused from paying the piper on the
basis of his vocation.
When all is said and done, what separates the wheat from the chaff in
this case is the plentitude of evidence developed at trial from which
the jury could have concluded that Cintolo, with corrupt purpose, joined
a powerfully coercive campaign to muzzle LaFreniere. In the last
analysis, the jury did so conclude. That finding cannot lightly be
overturned. Indeed, the record evidence preponderates strongly to the
view that Cintolo's conduct, though nominally on behalf of his erstwhile
client, was undertaken with the intent of protecting
[*996]
Angiulo and Angiulo's associates, whatever the cost to LaFreniere and
whatever the consequences to the due administration of justice. The fact
that the client had to be encouraged to commit contempt and to serve a
prison term was a routine expense of doing business -- the
[**44]
"business" of safeguarding the interests of Angiulo and his henchmen.
The jury was amply justified in determining that, vis-a-vis the due
administration of justice, Cintolo acted
sterilissima infidelitas.
Seen in this gloomy light, the cases relied upon by appellant and the
amici are inapposite, and the policies which they elucidate land wide of
the mark.
For the foregoing reasons, we emphatically reject the notion that a law
degree, like some sorcerer's amulet, can ward off the rigors of the
criminal law. No spells of this sort are cast by the acceptance of a
defendant's retainer. We decline to chip some sort of special exception
for lawyers into the brickwork of § 1503. By our reckoning, attorneys
cannot be relieved of obligations of lawfulness imposed on the citizenry
at large. Acceptable notions of evenhanded justice require that statutes
like § 1503 apply to all persons, without preferment or favor. As sworn
officers of the court, lawyers should not seek to avail themselves of
relaxed rules of conduct. To the exact contrary, they should be held to
the very highest standards in promoting the cause of justice.
See ABA
Model Code of Professional Responsibility EC 1-5 ("A
[**45] lawyer
should maintain high standards of professional conduct and should
encourage fellow lawyers to do likewise."); EC 9-6 ("Every lawyer owes a
solemn duty to uphold the integrity and honor of his profession; to
encourage respect for the law and for the courts and judges thereof; . .
. to conduct himself so as to reflect credit on the legal profession and
to inspire the confidence, respect, and trust of his clients and of the
public").
We have carefully examined the avowed fears of the appellant and the
amici that a decision upholding Cintolo's conviction in this case may
deter counsel from multiple representation of defendants, or somehow
chill the criminal defense bar in zealous advocacy on behalf of clients.
We find such concerns to be grossly overstated. Our ruling today does
not interfere with legitimate avenues of advocacy or the ethical conduct
of even the most vigorous representation. We do nothing more than apply
a criminal statute, aimed at protecting the sanctuary of justice from
malevolent influences, in a sober and impartial fashion. Shorn of
[**46]
hyperbole, appellant's argument reduces to the thoroughly unsupportable
claim that § 1503 has two levels of meaning -- one (more permissive) for
attorneys, one (more stringent) for other people. We see nothing to
recommend the proposition that attorneys can be of easier virtue than
the rest of society in terms of the criminal code. As citizens of the
Republic equal under law, all must comply with the same statute in the
same manner.
In sum, the government presented plethoric evidence from which the jury
could reasonably have found the appellant guilty of conspiring to
obstruct the due administration of justice. His role as a defense
attorney did not insulate him from the criminal consequences of his
corruptly-motivated actions. Accordingly, the district court did not err
in denying the defendant's motion for judgment of acquittal.
III.
Though the analysis contained in Part II,
supra, disposes of the
defendant's principal thesis, Cintolo has essayed a constitutional
challenge to the omnibus clause of § 1503 as well. We have patiently
considered the vagueness and overbreadth grounds which undergird this
foray, and find them to be without merit. We discuss them briefly.
Given the
[**47]
absence of any first amendment considerations, the appellant cannot
plausibly attack § 1503 as unconstitutionally vague on its face.
United States v. Powell, 423 U.S. 87, 92, 46 L. Ed. 2d 228, 96 S.
Ct. 316 (1975). Thus, we test the statute's clarity only as applied
to the facts of this case. In
Robinson v. Berman, 594 F.2d 1 (1st Cir. 1979), we stated
that a law "may not hold an individual 'criminally responsible for
conduct which he could not reasonably understand to be proscribed.'"
[*997]
Id. at 2 (quoting
United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S.
Ct. 808 (1954)). Accord
United States v. Anzalone, 766 F.2d 676, 678 (1st Cir. 1985).
So long as a criminal law is specific enough to give fair notice of what
conduct is prohibited,
Colten v. Kentucky, 407 U.S. 104, 110, 32 L. Ed. 2d 584, 92 S.
Ct. 1953 (1972), and gives the challenger adequate warning that his
contemplated conduct would be unlawful,
United States v. Mazurie, 419 U.S. 544, 553, 42 L. Ed. 2d 706, 95
S. Ct. 710 (1975), the enactment passes constitutional muster.
The omnibus clause of § 1503, as we read it, easily satisfies these
criteria. It is, indeed, aposematic -- giving fair and conspicuous
notice of what behavior it interdicts. Because other courts have dwelt
on the subject at length, we need not
[**48]
reinvent the analytic wheel.
See, e.g.,
United States v. Howard, 569 F.2d at 1336-37 ("Since the
omnibus clause of the statute quite clearly proclaims that all
obstructions of justice are prohibited, we conclude that section 1503
gives 'fair notice of the offending conduct' . . ., which is all the
constitution requires . . . .") (citations omitted);