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Precedential or Non-Precedential: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, 

, 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, 

, 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, 

, 1129 (3d Cir. 1990). Insufficiency of the evidence
claims, in particular, place a heavy burden on a defendant.
See United States v. Gonzalez, 

, 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, 

, 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, 

, 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, 

, 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


, 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, 

(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, 

(1995), and United States v. Walasek, 

(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.

(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, 

(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, 

(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 

. 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, 

, 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

. 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.

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


, 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 

; Pettibone v.
United States, 

, 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." 

(citing 

)."[I]f the defendant
lacks knowledge that his actions are likely to affect the
judicial proceeding, he lacks the requisite intent to
obstruct." 

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, 

(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 

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." 

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, 

(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 

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 

.

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, 

, 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, 

,
1368 (6th Cir. 1994). Circumstantial evidence may be used
to prove all the elements. See United States v. Kapp, 

, 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. 

.

                               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
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, 

, 1150 (8th Cir. 1996); United States v.
Krasovich, 

, 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, 

(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." 

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.

(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, 

(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.

(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, 

(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." 

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 

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, 

(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." 

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." 

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." 

v. Esposito, 

(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, 

(Sup. Ct. 1975), the
defendant was charged with bribery when, on his arrest, he
offered to assist the police in catching drug dealers in
return for leniency. The court held that

       the benefit must not be so remote, abstract, or
       theoretical as to create speculation as to its ultimate
       value to the receiver. In the case at bar, it is doubtful
       if a vague offer to turn State's evidence, without
       anything further, constitutes such a benefit in the
       statutory sense.

In People v. Adams, 

(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.

(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 

(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, 

,
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, 

, 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, 

, 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, 

, 1485-86
(9th Cir. 1994) (en banc), rev'd on other grounds, 

(1995). United States v. Poindexter, 

(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, 

,
546 (9th Cir. 1991); United States v. King, 

(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," 

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," 

See also United States v.
Morrison, 

, 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, 

(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.

. 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 

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 

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 

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.

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, 

, 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, 

(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, 

, 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, 

, 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, 

(8th Cir. 1988); United States v. Hicks, 

(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, 

, 1020 (2d Cir. 1990); United States v. Kaplan, 

, 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, 

, 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, 

(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.

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 

see also 

& 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, 

, 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. 

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, 

, 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, 

, 1076 (7th
Cir. 1998); United States v. Washington, 

, 225
(9th Cir. 1987). In Government of the Virgin Islands v.

, 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 

n.6. We reversed
because of the "errors in the charge to the jury." 

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., 

, 156 (3d Cir.
1998). We cannot say that the error was harmless on this
record. See also United States v. Logan, 

, 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, 

, 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, 

, 60-61 (2d Cir. 1995);
Government of V.I. v. Archibald, 

, 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 

United States v. Womochil, 

(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, 

, 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, 

(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, 

, 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, 

, 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