United States v. Davis

Opinions of the United

1999 Decisions 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Precedential or Non-Precedential: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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Filed July 19, 1999

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

FAITH S. HOCHBERG, ESQUIRE

United States Attorney

MAUREEN A. RUANE, ESQUIRE

(ARGUED)

Assistant United States Attorney

GEORGE S. LEONE, ESQUIRE

Assistant United States Attorney

970 Broad Street

Newark, NJ 07102-2535

Counsel for Appellee

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 beyond 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.

2

I. Facts

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 herfingers.

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

3

stolen merchandise, and also traded illegal guns and a

small amount of heroin. These transactions were captured

on video and audio surveillance. Sabol provided Vittorio

and others in the Crew with cell phones, which became

subject to a wiretap order on January 13, 1994.

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 talk 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

4

reluctance, Michael explained that Davis told him. Vittorio

wanted to speak to Davis, whom he knew from the Lanteris'

engagement party, so he went to Davis's house. Davis was

drunk and paranoid, and he warned Vittorio that Sabol was

a "rat," which Vittorio took to mean that Sabol might be

wearing a wire, giving information to the authorities, or

testifying in order to get a reduction in sentence.

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 immediately 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.

5

Vittorio eventually told Sabol that Davis was the source

of the information. Sabol thereupon explained that Davis

hated him because of his former relationship with Pelatti.

By the end of the February 18 conversation, Vittorio was

almost positive that Davis had lied to him out of

resentment and jealousy.

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 Sabol 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.

6

The District Court sentenced him to forty-five months'

imprisonment on each count to run concurrently, and a

$550 special assessment.

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 18 U.S.C. S 1503. That law reads in relevant part:

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 wiretap rather than the later FBI wiretap

7

investigation into the source of the "leak" about Sabol's

status.1

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 S 1503. For example,

intentionally interfering with the execution of a search

warrant by warning its target to conceal or dispose of

evidence does not involve a pending judicial proceeding and

therefore falls outside of S 1503. See United States v.

Brown, 688 F.2d 596, 598 (9th Cir. 1982). Investigation by

agents of the Treasury Department "or some other like

instrumentality" of the United States does not constitute a

pending proceeding. United States v. Perlstein, 126 F.2d

789, 792 (3d Cir. 1942); see also United States v. Simmons,

_________________________________________________________________

1. We do so because Davis's acts indicated that he surmised the

existence of the Customs wiretap, and he interfered with its success. By

contrast, there was no evidence that he had any idea that the FBI

wiretap existed, and the government did not argue that his acts

interfered with its success. It was evident in context that the charged

"wiretap obstruction" involved the Customs investigation, just as the

"grand jury obstruction" did.

8

591 F.2d 206, 208 (3d Cir. 1979) ("[T]he obstruction of an

investigation that is being conducted by the FBI, or by any

similar governmental agency or instrumentality, does not

constitute a S 1503 violation because such agencies or

instrumentalities are not judicial arms of the government

`administering justice.' "). Even probation supervised by

court-appointed officers does not constitute a pending

proceeding. See Haili v. United States, 260 F.2d 744 (9th

Cir. 1958). Thus a wiretap, which is generally part of an

investigation conducted by agents of the executive branch,

would seem to fall within Perlstein's and Simmons's

description of investigations that are insufficient to invoke

S 1503.

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, 18 U.S.C. S 2232(c); his S 1503

obstruction charge related to conduct specifically involving

a grand jury.

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,

9

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, 18

U.S.C. SS 2510-2520, does not make wiretaps a function of

the judicial branch, but rather ensures that wiretaps--

searches--are carried out within the confines of the Fourth

Amendment. See United States v. Cafero, 473 F.2d 489 (3d

Cir. 1973).

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.

10

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 a 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 of 18 U.S.C. S 1503.

Id.

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

11

Walasek, 527 F.2d at 678, but the record in this case is

devoid of any evidence of such a connection. There is no

testimony that the subpoena was issued in furtherance of

an ongoing or presently contemplated presentation of

evidence to the grand jury. We cannot, consistent with our

precedent, find Agent Delia's testimony about the subpoena

sufficient to sustain Davis's conviction.

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

sweep. 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.

12

The District Court concluded that Davis's failure to take

proper police action from December 25, 1993 (when hefirst

learned about Sabol's link to Vittorio), through March 4,

1994, justified an inference that Davis knew that Sabol was

involved in an ongoing investigation. The District Court

believed that Davis should have reported Sabol and

Vittorio's illegal activities to his superiors, and that, when

he did not, a jury could infer that he believed that Sabol

was working for the government.2 At the very least, the

District Court held, the jury could have found that Davis

was willfully blind to the likelihood that Sabol was involved

in an investigation. Moreover, the jury could have

concluded that Davis knew that his actions had the natural

and probable effect of interfering with a federal

investigation. As Vittorio testified, but for Davis's actions,

he and other members of the Giampa crew would have

continued to deal with Sabol.

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.

_________________________________________________________________

2. The District Court also noted that Davis reported his contacts with

Vittorio to his supervisor, Larry Wirsing, on March 4, 1994. At that

point, Wirsing and Davis contacted FBI Agent John Truslow. The court

found that the jury could have viewed Davis's contacts with authorities

as another attempt to rid himself of Sabol's presence. While this

behavior is probative of Davis's underlying motive, it is inconsistent

with

a belief that Sabol was an informant; if Sabol were an informant, the

government would not have any reason to rearrest Sabol for associating

with Vittorio.

13

In United States v. Frankhauser, 80 F.3d 641 (1st Cir.

1996), the defendant took a number of acts to cover up

evidence of hate crimes. The evidence clearly showed that

he was aware of an FBI investigation into the crimes. The

court, after scouring the record, found no evidence that the

defendant knew or had notice of the pending grand jury

proceeding. The government offered two pieces of evidence

to meet its burden. The first was a misstatement by the

defendant that he expected the FBI investigator to return

"with a subpoena or search warrant," when it was clear

that he meant to say "search warrant." In addition to

finding that this was an irrelevant misstatement, the court

also held that, even if the defendant was referring to a

subpoena, there was no way to infer from this statement

that he knew that a grand jury proceeding was underway,

rather than merely a future possibility. See id. at 650. The

government's second piece of evidence was similar to the

government's evidence in this case: A witness testified that

the defendant knew that the crimes were under

"investigation." The court found that "we see no way the

jury could have inferred that the investigation was by a

grand jury rather than by the FBI." Id. Frankhauser, which

we find persuasive, strongly supports Davis's argument, as

it clearly distinguishes simple awareness of a federal

investigation from knowledge of a pending judicial

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

14

to influence an investigation, which the evidence clearly

supports, is insufficient to sustain a conviction under

S 1503. See Aguilar, 515 U.S. at 599.

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 18 U.S.C. S 371. The sufficiency of the

evidence in a conspiracy prosecution requires close

scrutiny. See United States v. Schramm, 75 F.3d 156, 159

(3d Cir. 1996). In order to prove a conspiracy to obstruct

justice, the government must establish that there was an

agreement whose object was to obstruct justice, that the

defendant knowingly joined it, and that at least one overt

act was committed in furtherance of the object of the

agreement. See United States v. Mullins, 22 F.3d 1365,

1368 (6th Cir. 1994). Circumstantial evidence may be used

to prove all the elements. See United States v. Kapp, 781

F.2d 1008, 1010 (3d Cir. 1986). It is the first element--the

existence vel non of an agreement to obstruct justice--that

is in issue here.3

_________________________________________________________________

3. The lack of evidence that a grand jury proceeding was pending is not

dispositive on this count. In Perlstein, there was a conspiracy

surrounding an illegal still. The conspiracy to suppress evidence and

keep potential witnesses away from any investigating agency began more

than two years before any judicial proceeding began. The indictment

alleged overt acts both before and after the grand jury began to

investigate. We assumed that the substantive offense of obstruction of

justice could not have been committed at the inception of the conspiracy,

but held that the defendants could still be charged with conspiracy to

obstruct justice to be administered in the federal courts in the future.

We suggested that conspirators who "expect or fear" that federal

proceedings will be instituted can be prosecuted for conspiracy to

obstruct justice. Perlstein, 126 F.2d at 795.

15

The District Court ruled that the evidence that Davis had

informed Vittorio, Michael, and Maria of the Customs

investigation and of Sabol's status as a confidential

informant was sufficient to establish that he conspired with

others to obstruct justice. The evidence spins out as

follows: Michael and Maria had a relationship with Vittorio,

and Davis first convinced them that Sabol was an

informant, then got them to arrange a meeting between

Davis and Vittorio. Davis provided Michael and Vittorio with

information about Sabol's Georgia conviction, including the

names of an FBI agent and an AUSA involved in the case,

and told Vittorio that Sabol had received a twenty-year

sentence, making it impossible for him to be out on work

release. He told Vittorio that Sabol was cooperating with the

government and that the cell phones that Sabol gave to

Vittorio, McManus, and Giampa were tapped. The taped

conversations from January 25 to March 2 corroborated

Vittorio and Michael's testimony.

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

_________________________________________________________________

It is unclear to what extent this 1942 decision survives Aguilar, since

much of the conduct alleged in Perlstein probably would fail Aguilar's

nexus test, which requires that an obstructive act be likely to interfere

with a grand jury rather than simply likely to interfere with an

investigation. More importantly, however, Perlstein concerned a situation

in which a jury could find that the defendants contemplated a federal

investigation, and the defendants admitted that they knew of the grand

jury investigation once it began. See Perlstein, 126 F.2d at 795.

Perlstein

does not change the requirement that there has to be some proof that

the conspirators knew of or anticipated a grand jury investigation.

16

participants need not be indicted. See United States v.

Delpit, 94 F.3d 1134, 1150 (8th Cir. 1996); United States v.

Krasovich, 819 F.2d 253, 255 (9th Cir. 1987). The critical

flaw in the government's case is that there is no evidence in

the record that any of Davis's alleged coconspirators had

the necessary awareness of a pending or threatened judicial

proceeding. In United States v. Molt, 615 F.2d 141 (3d Cir.

1980), we reversed a conspiracy conviction because, while

there was overwhelming evidence that the defendant

violated the substantive law, there was insufficient evidence

of his alleged coconspirators' knowledge. "[W]hen knowledge

is an essential element of the underlying substantive

offense, it must be proven that all co-conspirators possess

the requisite knowledge." Id. at 146. That is, a person

cannot conspire with himself; at least two conspirators

must have sufficient knowledge in order for there to be a

conspiracy.

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 would 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 18 U.S.C. S 1952, which

provides in relevant part that

17

[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 New York

Penal Law S 200.25, receiving reward for official

misconduct:

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." N.Y. Penal LawS 10.00(17)

(McKinney 1988), and the court so instructed the jury. The

law does not require an agreement between the two parties,

as the law against bribery does; it only requires a past

violation of duty and a solicitation or acceptance of a

benefit for the violation.

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 Penal Law S 200.25, the extant case law suggests

that the government's theory of benefit goes too far. In

People v. Hyde, 141 N.Y.S. 1089 (App. Div. 1913), the

defendant, who had authority to deposit city money in

banks, asked a bank manager to extend a loan to a friend

of his, in return for which the defendant promised that he

18

would increase the amount of city funds on deposit at the

manager's bank. He was charged with receiving a bribe.

The court concluded that he could not be convicted of that

crime because there was no showing of any "personal

advantage" to him.

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

of 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

19

the Police Department." Id. at 21-22. The radio was being

used by drug dealers in the area both to taunt the police

and to monitor their activity, causing the officers

embarrassment and jeopardy. See id. at 22. The case

produced a vigorous dissent, which argued that the radio

was only tenuously connected to the officers and that the

enjoyment of its return was an insufficient benefit under

the statute.

The government argues that the majority opinion in

Feerick supports its theory because retrieving the radio

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 personal relationship with the

20

informant so that she would give him information about

undercover Sheriff's operations relating to drug use by him

and his friends. The court found that "such a benefit would

be highly speculative and consist only of a remote wish or

an illusive hope on his part." Id.

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.

Id. at 67.

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 or 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,

21

in that little credit would redound to him for the

committee's report and there was no evidence that he

benefited in any "direct material way."

We believe that the "benefit" here is too gossamer to fall

within section 200.23. The government's theory would

convert all violations of duty that involve at least one other

person into violations of this statute. Under that approach,

if an officer harasses a citizen, he or she receives the

pleasure of having harassed the citizen, and that "benefit"

comes (however unwillingly) from the citizen. If an officer

declines to arrest someone when an arrest should occur,

that person receives a benefit, and the benefit would be

"pursuant to [the officer's] desire and consent," within the

prohibition of the statute. (The statute does not require any

particular relationship between the officer and the person

benefited, so long as the benefit accrues pursuant to the

officer's desire and consent.) Essentially, this theory

converts Davis's violation of his duty into a "benefit" by

virtue of his desire to violate his duty and his hope for

satisfaction from doing so.

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 section

200.25, but we believe that the claimed benefit in this case

is so intangible and speculative as to fall outside the reach

of the statute.

22

The government has, however, a narrower theory, which

it also argued to the jury: Davis wanted Vittorio to give him

a gun in return for his damning information. Although the

issue is close, we think that this is too tenuous a ground

on which to uphold Davis's conviction. The link between

the gun and the violation of duty is far more attenuated

than what the New York courts seem willing to accept. In

Feerick, for example, the only way for the officers to get

what they wanted was to get the radio, while here receiving

the gun was an incremental step in a possible plan to shoot

Sabol, one of the least likely ways in which Davis could be

rid of Sabol. The request was not part of an actual

attempted murder, and it remained entirely hypothetical.

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 S 1952 must be set aside.

D. Witness Tampering

1. Introduction

Davis was also charged with witness tampering in

violation of 18 U.S.C. S 1512(b):

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 S 1503, S 1512 does not require an official

proceeding to be pending or imminent at the time of the

offense. A reasonable belief that the named witness will

23

communicate information to a law enforcement officer is

enough to create liability under the statute. See United

States v. Kozak, 438 F.2d 1062, 1066 (3d Cir. 1971). As

discussed above, a reasonable jury clearly could have found

that Davis believed that Sabol was communicating with the

authorities.

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 18 U.S.C. S 1515(c). A defendant's husband

or mother, however, would not fall within this safe harbor

if he or she advised a defendant to keep silent when

approached by potential witnesses.

24

Our rejection of the government's broad theory has a

basis in the statute. Because there is no allegation that

Davis used misleading conduct,4 intimidation, physical

force, or threats, we limit our inquiry to whether he

engaged in "corrupt persuasion" with the relevant intent.

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 18 U.S.C.S 1505, which

prohibits obstructing proceedings before congressional

committees. Poindexter was charged with obstruction of

justice for lying to Congress, which the government argued

was "corrupt persuasion." The majority held that the term

could not be extended to encompass simple lying to a

congressional committee.

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.

_________________________________________________________________

4. Several courts have held that asking a witness to tell what he knows

to be a lie is not misleading conduct because there is nothing misleading

about a request to lie. See, e.g., United States v. Kulczyk, 931 F.2d 542,

546 (9th Cir. 1991); United States v. King, 762 F.2d 232 (2d Cir. 1985).

The government has not identified any way in which Davis's conduct was

misleading. Indeed, on the government's own theory he told the truth as

he perceived it: Sabol was an informant. If asking for a lie is not

misleading to the target, surely telling the truth is not.

25

The Poindexter court determined that corrupt persuasion

is " `corrupting' another person by influencing him to violate

his legal duty," id. at 379, and that the"core" of the

statutory prohibition of corrupt persuasion was aimed at a

person who, "for the purpose of influencing an inquiry,

influences another person (through bribery or otherwise) to

violate a legal duty," id. at 385. See also United States v.

Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996) (influencing a

witness to violate her legal duty to testify truthfully

constituted corrupt persuasion under S 1512(b)).

We approved of Poindexter's reasoning in theS 1512

context in United States v. Farrell, 126 F.3d 484 (3d Cir.

1997). Farrell was convicted of witness tampering for

attempting to dissuade a coconspirator from providing

information to federal investigators about Farrell's

involvement in a conspiracy. We reversed his conviction:

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

_________________________________________________________________

5. We declined, however, to resolve whether discouraging the testimony

of a potential witness who did not possess a Fifth Amendment privilege

of his or her own would violate S 1512. See Farrell, 126 F.3d at 489 n.3.

26

interloper. While we agree that Davis may have violated

S 1512(b), see infra, we caution that Davis's malicious

purpose to expose an informant is insufficient under Farrell

to justify a conviction:

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.

Id. at 489.

Davis may be properly convicted under S 1512(b) because

there was testimony that he suggested that Vittorio should

kill Sabol and asked Vittorio for a gun so that Davis himself

could kill Sabol. By suggesting that Vittorio should "do

something" about Sabol or get Davis a gun, Davis urged

Vittorio to violate his legal duty not to kill Sabol or aid in

Sabol's death. This conduct would constitute "corrupt

persuasion" under the statute. The fact that Davis never

had direct contact with Sabol is irrelevant, because all that

is required under S 1512(b) is that a defendant corruptly

persuade "another person" with the requisite intent. That

person need not be the witness. Moreover, Vittorio's

testimony that he was never persuaded to kill Sabol does

not exonerate Davis. If Davis intended to corruptly

persuade, his attempt violates the statute.6

_________________________________________________________________

6. Although Davis does not raise the issue, we note that the District

Court's instruction on corrupt persuasion does not track Farrell. The

Court instructed the jury that "[t]he word`corruptly' means having

improper motive or purpose of obstructing justice." SA at 1426. Farrell

and Poindexter suggest that this instruction provides insufficient

guidance to the jury, as anyone with the intent to interfere with an

investigation has "improper" motives. On remand, the Court should

clarify that "corrupt persuasion" involves more than an improper motive,

and includes inducements to violence.

27

III. The Intoxication Instruction

Having decided that there is sufficient evidence for a

conviction under S 1512(b), we turn to the question whether

Davis is entitled to a new trial because the District Court

refused to provide an intoxication instruction concerning

his specific intent. A defendant is entitled to an instruction

on his theory of the case where the record contains

evidentiary support for it. See Government of V.I. v.

Carmona, 422 F.2d 95, 99 n.6 (3d Cir. 1970). A court errs

in refusing a requested instruction only if the omitted

instruction is correct, is not substantially covered by other

instructions, and is so important that its omission

prejudiced the defendant. See United States v. Smith, 789

F.2d 196 (3d Cir. 1986). We first consider whether Davis

preserved the issue for appellate review, and then evaluate

the merits of his request.

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

28

What Might Have Been: Winter Lands a Late Blow, Bergen

County Record, Mar. 23, 1998, at A1 (stating that up to six

inches fell in New Jersey, disrupting traffic). On Monday,

March 23, 1998, defense counsel stated that the inclement

weather had disrupted his research, and, when specifically

asked about the intoxication charge, stated:

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

_________________________________________________________________

7. The government argues that these papers were never submitted to the

District Court, and that the Court's subsequent reference to defense

29

accounts, because we conclude that Davis's counsel

brought the intoxication issue to the Court's attention with

sufficient clarity to preserve the issue, even assuming that

he did not provide the Court with any written submission.

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.

_________________________________________________________________

counsel's Devitt and Blackmar excerpts referred to materials submitted

in response to other portions of the proposed charge. See SA at 1288

(District Court refers to excerpts from Devitt & Blackmar and Aguilar

submitted by defense counsel). The government submits that it included

the proposed intoxication charge in the appellate record, despite the fact

that it was not presented to the District Court, in order to avoid any

appearance of concealing relevant material. Davis's appellate counsel,

who did not represent Davis at trial, takes the position that the

instruction was submitted to the Deputy Court Clerk on the morning of

March 23, 1998, and was properly included in the appellate record.

Davis's trial counsel offered to submit an affidavit to this effect, but

we

have found it unnecessary for him to do so.

30

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

31

arcane. Indeed, not only is the appropriate instruction set

forth in Devitt & Blackmar, an instantly available source for

any federal trial judge, but there appears to be no dispute

as to the substance of the law: Intoxication is a defense

when a defendant's intoxication prevented him from

possessing the mental state necessary to commit the crime

with which he is charged.

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 perfect, 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).

32

B. Was the Instruction Justified?

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 as 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

33

that "Vinnie was very drunk" at the end of their

conversation. Davis likewise described himself as

"hammered" and "very, very drunk" on March 2.

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.

34

At all events, in Carmona, the evidence justifying the

instruction was weaker than it is here, because the only

testimony in Carmona was that the defendant was drinking,

and the witnesses refused to say that he behaved in a

drunken manner. By contrast, Michael testified that Davis

was "drunk beyond drunk," and Vittorio testified that Davis

was drunk and paranoid at their first meeting on January

25, 1994. Vittorio was so concerned about Davis's drunken

driving on March 2, 1994, immediately after their second

meeting, that he called Michael to express his concern.

While the government notes that a jury could conclude that

Davis was not drunk at the beginning of the March 2

conversation, there was also evidence from which a jury

could conclude that Davis was significantly affected by

alcohol at the time of the critical statements.

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

35

January 25 and March 2--asking for the gun and

suggesting that Vittorio harm Sabol--did not permeate his

discussions with Vittorio, and a jury could have believed

that Davis blurted them out drunkenly without intending

that his requests should be acted upon. Unlike his hatred

for Sabol, his acts of corrupt persuasion were not so

extensive as to make the intoxication defense implausible.

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 Rule 403. Because we are remanding

the witness tampering charges for retrial, we will evaluate

the challenged evidentiary rulings. We will only disturb a

district court's decision on admissibility for abuse of

discretion. See United States v. Donley, 878 F.2d 735, 737

(3d Cir. 1989).

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 because Vittorio falsely claimed--in a

36

conversation with Michael that was recorded as part of the

federal investigation and subsequently provided to NYPD

investigators--that Davis had allowed him (Vittorio) to fire

Davis's police firearm. (Vittorio now concedes that this was

a lie.)

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 specific doctrine,

"curative admissibility," which states that once a party has

introduced inadmissible evidence that may create a false

_________________________________________________________________

8. In addition to making essentially the same charges as those before the

jury, the police department also charged Davis with lying to the FBI

agents who had investigated the "leak."

9. The challenged questions did not serve to rehabilitate Vittorio, the

government's witness, as the government apparently conceded that

Vittorio had lied in the statement relied upon by the NYPD investigators

and merely sought to show that there were additional reasons justifying

Davis's discharge.

37

impression, an opposing party may thereafter introduce

otherwise inadmissible evidence to rebut or explain the

prior evidence. But the government does not argue that

Davis's direct testimony was inadmissible or explain why it

needed to rebut Davis's account of his termination. See

United States v. Forrester, 60 F.3d 52, 60-61 (2d Cir. 1995);

Government of V.I. v. Archibald, 987 F.2d 180, 187 (3d Cir.

1993). Therefore, this is not a case of curative admissibility.

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

38

man and ripped it up. During an Internal Affairs interview,

Davis denied that he ripped up the pass, but another officer

found the ripped-up pass and Internal Affairs determined

that Davis had lied. Third, the prosecutor asked Davis

about an incident in 1985 in which Davis was charged with

improperly putting a gun to a prostitute's head. She

claimed that Davis yelled at her, that she responded

profanely, and that he then slammed her on the hood of his

car and put a gun to her head. In response to the

prosecutor's questions, Davis gave exculpatory accounts of

his acts in those three instances.

Davis notes that, under Rule 404(b), evidence of other

crimes or wrongs is inadmissible to prove personal

disposition, i.e, character. It is only admissible for other

purposes, including motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of

mistake or accident. He argues that credibility is not a

permissible 404(b) exception. However, under Federal Rule

of Evidence 608(b), specific instances of conduct may be

inquired into on cross-examination, at the discretion of the

court, if they are probative of a witness's truthfulness or

untruthfulness. Rule 608(b) applies because the

government did not introduce extrinsic evidence about

these other acts; all it did was ask Davis about them.10

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

Rule 608(b)). Inquiry into the third incident, involving the

prostitute, does not appear to be probative of truthfulness

and therefore it should not have been permitted on cross-

examination, unless the government explains to the District

_________________________________________________________________

10. A few courts have allowed cross-examination about other bad acts

under Rule 404(b) to challenge credibility, though we think that the

correct view is that such questions are allowable under Rule 608. See,

e.g., United States v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995)

(allowing questions about other acts of molestation to challenge the

defendant's credibility under Rule 404(b)); United States v. Chevalier, 1

F.3d 581, 583-84 (7th Cir. 1993) (same for bank fraud in tax fraud trial;

court invoked Rule 404(b) but cited only Rule 608(b) cases).

39

Court why it was probative of credibility rather than of a

tendency to do bad acts.

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

40