United States v. Rakes ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1693
UNITED STATES OF AMERICA,
Appellant,
v.
STEPHEN M. RAKES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
Richard L. Hoffman, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, and James D. Herbert,
Assistant United States Attorney, were on brief for the United States.
Michael F. Connolly with whom Francis X. Bellotti, Valerie B.
Robin and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on
brief for appellee.
February 11, 1998
BOUDIN, Circuit Judge. In May 1996, Stephen Rakes was
indicted by a federal grand jury and charged with perjury and
obstruction of justice. Prior to trial, Stephen Rakes moved
to suppress conversations between him and his former wife,
Julie Rakes, and between him and his one-time attorney, John
P. Sullivan. The district court granted the motion, except
for one conversation, and the government now appeals.
The facts are readily gleaned from testimony taken by
Judge Lindsay in an in camera hearing on the motion to
suppress.1 Stephen and Julie Rakes were married in 1978 and
engaged in various business ventures together. In 1983, with
the help of their attorney, John Sullivan, the Rakes couple
established a corporation named Stippo's, Inc., as their
jointly owned company to operate a liquor store business at a
site on Old Colony Avenue in South Boston. The store opened
shortly before Christmas 1983.
The government believes that not long thereafter, the
Rakeses were threatened by unnamed people in South Boston who
were angry that the Rakeses were underpricing competitors.
Then, in early January 1994, the government believes that
James "Whitey" Bulger visited Stephen Rakes at home while
Julie was at the liquor store and threatened to kill Stephen
1The hearing was conducted in camera to avoid public
disclosure of the assertedly privileged materials, and the
briefs in this court have been filed under seal. This
opinion was filed under seal and the parties, having now
reviewed it, have no objection to its publication.
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unless Bulger or his associates were made partners in the
liquor store. By May 1984, again with the assistance of
Sullivan, the Rakeses had transferred Stippo's, Inc., to
another individual, whom the government believes was
associated with Bulger, for a fraction of what the government
says was its real value.
In May 1991, the government summoned Stephen Rakes
before a federal grand jury in Massachusetts investigating
extortion, racketeering and money laundering. The government
questioned Rakes about the transfer of Stippo's, Inc., to the
alleged Bulger associate. Rakes testified that he had sold
the store to make a profit and because it was too much work,
and said that no one had threatened him to make him sell the
store.
In September 1995, Stephen Rakes gave similar testimony
before a second federal grand jury. Thereafter, the
government called Julie Rakes and Sullivan before the same
grand jury. Although Sullivan initially refused to discuss
his conversations with Stephen and Julie Rakes, the
government secured an order from district judge compelling
Sullivan's testimony. Stephen Rakes was not advised that the
proceedings to compel Sullivan's testimony were under way.
In May 1996, the grand jury indicted Stephen Rakes,
charging him with five counts of perjury based on his grand
jury testimony, 18 U.S.C. 1623, and two counts of
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obstruction of justice, 18 U.S.C. 1503; the obstruction
counts charged that Rakes' grand jury testimony had been
false and intended to obstruct the grand jury. Three counts
of the indictment were later dismissed as multiplicitious but
four others remain pending.
Asserting the privilege for confidential marital
communications, Stephen Rakes moved to suppress evidence of
conversations in December 1983 and January 1984 between him
and Julie Rakes concerning alleged threats and the sale of
Stippo's. He also asked the court to suppress, on grounds of
attorney-client privilege, conversations between Stephen
Rakes or both Rakeses and Sullivan concerning the sale of
Stippo's, Inc. and the purpose of the sale. The district
court held four days of hearings on the motion.
In April 1997, the district court granted Stephen Rakes'
motion with one exception: it denied the motion as to one
conversation between Stephen and Julie Rakes, apparently
because it took place in the presence of a third party. The
district court identified the materials to be suppressed but,
presumably because of the risk of disclosure of privileged
information, did not write a supporting opinion or make
separate findings of fact. The government then brought this
interlocutory appeal. See 18 U.S.C. 3731.
We will assume arguendo the relevance of the suppressed
conversations to the government's prosecution. At the same
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time, most of the formal requisites for the attorney-client
and marital communications privileges are clearly met; the
government's main claim is that the privileges were waived or
forfeited. In a federal criminal case, privileges take their
content from the common law as it may be altered from time to
time in the light of reason and experience. Fed. R. Evid.
501. No brief version of either the marital
communications or attorney-client privilege can be both
complete and accurate. But, broadly stated and subject to
exceptions, the former privilege permits an individual to
refuse to testify, and to prevent a spouse or former spouse
from testifying, as to any confidential communication made by
the individual to the spouse during their marriage.2 The
latter privilege, again with exceptions, protects at the
client's behest confidential communications between lawyer
and client made to facilitate legal services for the client.3
The communications suppressed by the district court
between Stephen and Julie Rakes were made in the absence of
third parties and in the course of their marriage; that the
2See, e.g., Unif. R. Evid. 504(a); J. Strong, et al.,
McCormick on Evidence 78-86 (4th ed. 1992); Blau v. United
States, 340 U.S. 332 (1951). The separate marital privilege-
-to refuse to testify against a spouse in a criminal case--is
not pertinent here. Trammel v. United States, 445 U.S. 40,
51 (1980).
3Unif. R. Evid. 502(b); McCormick 87-97; Upjohn Co.
v. United States, 449 U.S. 383, 389-90 (1981); United States
v. United Shoe Machinery Corp., 89 F. Supp. 357, 358 (D.
Mass. 1950) (Wyzanski, J.).
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Rakeses later divorced is irrelevant, and the government
properly makes nothing of the possibility that one of the
conversations occurred in the presence of their infant
children. Similarly, Stephen Rakes' communications with
Sullivan were made during the course of Sullivan's
representation of Rakes and were related to legal services,
and no one was present except one or both of the Rakeses and
attorney Sullivan.
Both the content and context of the communications
support the implicit finding by the district judge that Rakes
intended his conversations, with both his wife and his
attorney, to be confidential. Further, if Stephen Rakes had
been threatened, as the government alleges, he had ample
reason over and above any ordinary interest in privacy to
want them to be kept confidential. We reserve for discussion
below the government's claim that later disclosures by
Stephen Rakes undermine the claim of confidentiality.
The government suggests that some general rule deprives
spousal conversations of the privilege if they relate to
financial matters; needless to say, it does not make this
claim in respect to the attorney-client privilege. The
marital communications privilege contains no such limitation:
the cases say, at most, that a discussion of financial
matters between husband and wife may not be intended to be
confidential. E.g., In re Witness Before Grand Jury, 791
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F.2d 234, 239 (2d Cir. 1986). In this case, however, the
subjectwas manifestlysensitive,albeit notforthe usualreasons.
Nor do we agree with the government's suggestion that
communications were not privileged insofar as Stephen Rakes
may have been relating to his wife events that occurred prior
to the communication. It is true that "communications"
privileges typically prevent inquiry into communications and
not into the underlying facts, Upjohn Co. v. United States,
449 U.S. 383, 395-96 (1981), although the subject is more
complicated than this generalization suggests.4 But the
district court's suppression order was directed to
communications, not to facts, and that is enough for present
purposes.
This brings us to the main thrust of the government's
argument, namely, that "[t]he suppressed communications are
not privileged because they occurred during an ongoing
extortion scheme." A crime of extortion, says the
government, extends from the initial threat through the
actual obtaining of the property. See 18 U.S.C.
1951(b)(2); United States v. Bucci, 839 F.2d 825, 829-30 (1st
Cir. 1988). Here, the government says that the crime
4Where an attorney knows facts only because they were
confidentially communicated by the client, the government
cannot circumvent the privilege by asking the attorney about
"the facts." See Upjohn, 449 U.S. at 395. The same rule
applies to the marital communications privilege. Blau, 340
U.S. at 333.
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extended from the first alleged threat in December 1983
through the completion of the property transfer in May 1984,
a period embracing all but one of the communications that the
government seeks to use.
No general rule withdraws the privilege from
communications that occur in the same time frame as criminal
act conduct. See In re Grand Jury Subpoenas Duces Tecum, 798
F.2d 32, 34 (2d Cir. 1986). But both the privileges involved
here are subject to some type of crime-fraud exception.
Thus, the attorney-client privilege is forfeited inter alia
where the client sought the services of the lawyer to enable
or aid the client to commit what the client knew or
reasonably should have known to be a crime or fraud. E.g.,
Unif. R. Evid. 502(d)(1); McCormick, supra, 95.
The counterpart limitation in the case of marital
communications is not necessarily identical; it is expressed
in somewhat different terms in different jurisdictions.5
However, we will assume for present purposes--favorably to
the government--that the privilege for marital communications
5See, e.g., Unif. R. Evid. 504(c); McCormick, supra,
78. In federal courts, the marital communications privilege
typically is forfeited only where both husband and wife are
jointly engaged in criminal activity or where the victim is
the other spouse or some other family member. See United
States v. Picciandra, 788 F.2d 39, 43-44 (1st Cir. 1986);
United States v. Mavroules, 813 F. Supp. 115, 119-20 (D.
Mass. 1993).
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would be lost to Stephen Rakes if he made the communications
in question to Julie for the purpose of carrying out a crime.
The government concedes that Stephen and Julie Rakes
were the "victims" of an extortion scheme. But to invoke the
crime-fraud exception, the government also says (the emphasis
is ours) that "the communications suppressed by the District
Court occurred while the Rakeses were participating in
carrying out the [extortion] scheme and covering it up, and
while Stephen was persuading Julie to do so." This, says the
government, entails loss of the privilege.
Yet, on the government's own version of events, the
Rakeses were not participants in the extortion in any
capacity other than that of victim. The Rakeses were
participants only in the very specialized sense that the
victim of a robbery "participates" by handing over his wallet
under threat of violence, or the victim of a rape
"participates" by offering no further resistance when
resistance appears futile or dangerous. This is not the kind
of participation in an offense that, in our view, vitiates
the privilege.
It is no accident that the government's case law is
remote from the present facts and consists of cases where one
spouse enlisted a second spouse in a criminal venture, e.g.,
United States v. Parker, 834 F.2d 408, 412-13 (4th Cir.
1987), or a wife knowingly assisted a husband in criminal
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conduct, e.g., United States v. Picciandra, 788 F.2d 39, 43-
44 (1st Cir. 1986). Here, even the government shrinks from
flatly asserting that the Rakeses were criminally liable for
extortion.
We have considered the government's further suggestion
that Stephen Rakes engaged in misconduct by inducing his wife
not to report the threat against him. It is enough to say
that the fragments of evidence cited do not even approach
misprision of felony or accessory after the fact. The
government's theory would make a criminal of anyone who, as
the victim of a crime or faced with a criminal threat,
resisted a spousal suggestion that the police be called.
The government's underlying notion may be that the
privilege is lost for any communication that plays a
functional role in a crime--regardless of whether the parties
to the communication are entirely innocent and otherwise
protected by the privilege. On this view, the parents of a
kidnapped child could be compelled to testify after the event
about their intimate conversations with each other concerning
the kidnapping and possible payment of a demanded ransom. It
is not an attractive picture, and it is hard to believe that
the suggestion is seriously intended.
In all events, it is not the law. Under the crime-fraud
exception, we think that it takes wrongful complicity by the
privilege holder, not innocent or involuntary action, to
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forfeit the privilege. This is so even though, as with many
applications of privilege, law enforcement may be hampered in
the interest of other values. The victims of kidnapping or
extortion have problems enough; loss of otherwise applicable
privileges is not part of the package.
The government's remaining argument is that Stephen
Rakes himself disclosed the alleged threats to others, most
importantly, to one Brian Burke. According to the
government, Rakes had promised to pay Burke for construction
and related work on the liquor store and owed him a
substantial sum. When in early 1984 Burke called about the
debt, the government says that Rakes told Burke in dramatic
terms that he (Rakes) had been forced out of the business.
This, says the government, shows that the information was
never confidential, and, in any event, the disclosure waived
the privilege.
The disclosure to Burke is weak, and to us wholly
unpersuasive, evidence that the communications suppressed by
the district court were never intended to be confidential.
For reasons already indicated, there is every reason to think
Stephen Rakes' conversations with Julie Rakes and with
Sullivan were intended to be confidential. The limited
disclosure to Burke, however dramatic, was obviously made to
ward off a debt collection effort and not because Stephen
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Rakes had any interest in broadcasting information that might
endanger his life.
The waiver issue is more complicated. Ordinarily,
deliberate disclosure of a privileged communication, where no
privilege protects this further disclosure, waives a
communications privilege. See United States v. MIT, 129 F.3d
681, 684-85 (1st Cir. 1997). The restriction is directed
against selective disclosures by reserving protection for
only those communications that the privilege holder himself
is prepared to keep confidential. SEC v. Lavin, 111 F.3d
921, 929, 933 (D.C. Cir. 1997). The restriction is one of
public policy, and applies regardless of the privilege
holder's subjective intent. MIT, 129 F.3d at 684.
As already noted, the privileged communication and the
facts recounted within it are two different things. Upjohn,
449 U.S. at 395. Thus, a client does not normally lose the
privilege as to communications with his attorney merely
because he testifies at trial to the same events discussed
with his lawyer. United States v. El Paso Co., 682 F.2d 530,
538-39, n.10 (5th Cir. 1982). Here, there is no suggestion
that Stephen Rakes ever told Burke or anyone else about his
communications with Julie or with attorney Sullivan.
Nevertheless, we agree that (on a theory of waiver) a
disclosure of information might be so complete as to defeat a
claim of privilege. We so held in United States v. Billmyer,
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57 F.3d 31 (1st Cir. 1995), but in peculiar circumstances:
the information had been collected by the attorney for the
client and then voluntarily disclosed in full by the client
to the government; the issue was whether this same
information, already possessed by the government, should also
be made available to the third parties whom the government
was prosecuting.
The present case is not remotely comparable. The
communications by Stephen Rakes to his wife and his attorney
apparently contained much that was not disclosed to Burke,
whom the government can always call as a witness. Nor, in
contrast to Billmyer, is Rakes making a disclosure to the
government while trying to withhold the information from
defendants whom the government is trying to prosecute.
Billmyer is the exception, and we have no trouble letting the
camel's nose into the tent without letting in the camel.
At oral argument the government accused Rakes of trying
to invoke a "victim's privilege." There is, of course, no
such privilege. A defense of "duress" exists but its
requirements are stringent. See 1 W. Lafave and A. Scott,
Substantive Criminal Law, 5.3 (1986). In any event, the
duress defense has not been invoked in this appeal and forms
no part of our decision. We simply agree with the district
court that the suppressed communications were originally
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privileged, and that there was no later loss of the privilege
as claimed by the government.
The government's arguments are, as is usual in this
district, presented with skill, and its zeal to pursue an
alleged extortionist is understandable. But skill and zeal
are to be harnessed by common sense. The notion that the
Rakeses could properly be treated as participating in their
own extortion is Orwellian. An appeal for which such a
proposition had to be the linchpin ought never to have been
brought.
Affirmed.
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