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D ock e t 98-6251

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. e du/thir dc ir c uit_1999/205Filed 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 AppellantFAITH 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 situati on that reads like the plot of a Grade B melodrama. It requ ires us to interpret several statutes that protect the inte grity of federal criminal investigations. The government has understandably attempted to find a law that crimina lizes the conduct of defendant Vincent Davis, which is as reprehensible as it is unusual. In the process, how ever, the government has stretched several laws beyond their breaking points. We conclude that the evidence addu ced at

Davis's trial was insufficient to convict him of ob struction of justice, conspiracy to obstruct justice, or use of a telephone in aid of racketeering activity (violatio n 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 evid ence 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 Di strict Court's refusal to give such an instruction require s 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 a ddress his challenges to his sentence.

2I. Facts

At the time of the relevant events, Davis was an of ficer with the New York Transit Police, although he was terminated in February 1997 following his indictmen t 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 fami lies. He and Diane Pelatti had dated in high school, and Dav is testified that, when Pelatti and Sabol broke up, Sa bol

threatened to throw acid in her face and cut off he rfingers. He also threatened Davis and Davis's family when Da vis began to date Pelatti. Davis plainly developed an o bsession with Sabol. On his own initiative, he attended Sabo l's 1986 sentencing in New York for credit card fraud; obtai ned a copy of Sabol's "rap sheet"; and discussed Sabol wi th 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 whe ther

Sabol could have made the call. Geer told him about the Georgia crime and stated that Sabol was going to pr ison for many years. What Geer did not tell Davis was that S abol 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 are a to infiltrate the Giampa Crew, which was a branch of t he Lucchese crime family. Sabol was acquainted with Ge nnaro Vittorio, who hoped to become a "made man" in the G iampa Crew. Vittorio's stepfather was Joseph Giampa, from whom

the Crew took its name. Customs used Sabol in a rus e whereby Sabol told Vittorio and others that he was on work release and offered to engage in various illegal ac tivities.

From October 1993 to January 1994, Sabol gained

Vittorio's confidence and also met others in the Cr ew. They engaged in several small-scale transactions in alle gedly

3stolen merchandise, and also traded illegal guns an d a

small amount of heroin. These transactions were cap tured on video and audio surveillance. Sabol provided Vit torio and others in the Crew with cell phones, which beca me subject to a wiretap order on January 13, 1994.

Meanwhile, Davis heard from various acquaintances t hat

Sabol was back in town. In view of Sabol's former relationship with his wife, this information made D avis extremely upset, especially as he was having marita l difficulties. One of the people who warned him that Sabol had returned was Michael Lanteri ("Michael"), who w as married to Maria Lanteri ("Maria"), Davis's sister. Michael and Vittorio were childhood friends, and Michael sa w Vittorio with Sabol. Because Davis knew that Sabol' s Georgia conviction should have kept him in prison f or 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 histo ry, became confident enough of Sabol's criminal tendenc ies that he sought to use Sabol to establish an import/ export business in New Jersey to import drugs and export s tolen vehicles. He gave Sabol $10,000 for this purpose on January 24, 1994. On January 25, 1994, however, Mic hael called Vittorio. He explained that he could not spe ak on the phone but insisted that Vittorio come to the Lanter is' apartment because Michael had important information for him. Moments later, Maria also phoned Vittorio and repeated Michael's urgings. Soon thereafter, Vittor io used his tapped cell phone to call James McManus, a memb er 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 indica tion that the Customs investigation was souring.

As later testimony would show, Vittorio began to di stance himself from Sabol because, at the Lanteris', Micha el told him that he was being set up, that Sabol had been a rrested

for a serious crime and should not be out on the st reet, and that Vittorio's crimes were being captured on tape. Vittorio asked how Michael knew all this, and, after some in itial

4reluctance, Michael explained that Davis told him. Vittorio

wanted to speak to Davis, whom he knew from the Lan teris' engagement party, so he went to Davis's house. Davi s was drunk and paranoid, and he warned Vittorio that Sab ol was a "rat," which Vittorio took to mean that Sabol mig ht be wearing a wire, giving information to the authoriti es, or testifying in order to get a reduction in sentence.

In order to back up his story, Davis showed Vittori o a piece of paper with a federal prosecutor's name and Agent Geer's name on it. He told Vittorio that he had a g ood 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 wo uld testify against Vittorio. Vittorio testified that D avis told him to "do something about it" and that Davis asked him for a gun. Although Vittorio later broached the idea of k illing Sabol to his stepfather, the stepfather immediately vetoed

the idea. Vittorio testified that he never seriousl y considered murder, nor did he ever consider giving Davis a

gun.

After that night, Vittorio and his confederates beg an to distance themselves from Sabol. On January 26, 1994

, McManus told Sabol that he could not sign a lease f or the warehouse needed for the import/export business bec ause 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 hi m to return the money he'd received from Vittorio only t hree days earlier. Vittorio and the others also stopped using their cell phones for illicit business.

Sabol, sensing his opportunity slipping away, attem pted to convince Vittorio of his trustworthiness. They t alked 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 t here was a "crooked" FBI agent involved. This immediatel y triggered an FBI investigation into the source of t he leak, as a result of which the Lanteris' phone was tapped.

5Vittorio eventually told Sabol that Davis was the s ource

of the information. Sabol thereupon explained that Davis hated him because of his former relationship with P elatti. By the end of the February 18 conversation, Vittori o was almost positive that Davis had lied to him out of resentment and jealousy.

Sabol apparently contacted Pelatti that day. Pelatt i

informed Sabol that Davis had told her that he woul d do "everything in [his] power" to get Sabol back in ja il. 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 Vittor io, trying to convince him that Sabol was an informant. Vittorio dodged his calls, but ultimately the two m et once again. Davis reiterated his earlier claims and sugg ested that Vittorio was on audio and videotape committing crim es with Sabol. He described his knowledge of Sabol's status as "gospel" and once again suggested that Vittorio sho uld give him a gun. Davis was extremely drunk, at least by t he end of the meeting. Vittorio was still unsure about Sab ol; he sought a face-to-face meeting, believing that if Sa bol were really an informant he would refuse such a meeting because of the danger to his safety. Sabol's handle rs refused a face-to-face meeting on exactly those gro unds.

In light of Vittorio's continuing reluctance to tru st 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 no t for Davis, he would have continued to engage in illegal activi ties with Sabol, increasing his criminal liability in the res ultant 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 justic e, two counts of witness tampering, and seven counts of us ing a telephone in aid of an unlawful act, specifically r eceiving a benefit for the violation of his official duty as a police officer. After a jury trial, he was convicted on al l counts.

6The District Court sentenced him to forty-five mont hs'

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 i n the light most favorable to the government. See United States v. Sain, 141 F.3d 463, 466 (3d Cir. 1998). If there is substantial evidence upon which a reasonable jury c ould have based its verdict, we should affirm. See Unite d States v. Obialo, 23 F.3d 69, 72 (3d Cir. 1994). The jury may make reasonable inferences from the evidence presented; the evidence need not unequivocally point to the defend ant's guilt as long as it permits a finding of guilt beyo nd a reasonable doubt. See United States v. Pungitore, 9 10 F.2d 1084, 1129 (3d Cir. 1990). Insufficiency of the evi dence claims, in particular, place a heavy burden on a de fendant. See United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990).

II. The Counts of Conviction

A. Obstruction of Justice

Count 2 of the indictment charged obstruction of ju stice

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

Whoever . . . corruptly or by threats or for ce, or by any threatening letter or communication, influen ces, obstructs, or impedes, or endeavors to influ ence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or impri soned not more than five years, or both.

In order to violate S 1503, a defendant must have n otice or knowledge of the pendency of some judicial proceedi ng constituting the "administration of justice." See U nited States v. Nelson, 852 F.2d 706, 710 (3d Cir. 1988). The District Court ruled that there were two possible j udicial proceedings that Davis might have obstructed: the g rand jury investigation into the Giampa Crew and the wir etap investigation. Though there is some confusion on th is point, we presume that the jury would have considered the Customs wiretap rather than the later FBI wiretap

7investigation into the source of the "leak" about S abol's

status.1

The verdict form provided to the jury separated the "grand jury obstruction" from the "wiretap obstruct ion" and allowed the jury to find Davis guilty or not guilty separately, and repeated this for the conspiracy counts. The ju ry found Davis guilty of both "grand jury obstruction" and " wiretap obstruction." Therefore, while we conclude that S 1 503 does not prohibit "wiretap obstruction," thus invalidati ng Davis's conviction therefor, we must also evaluate the suff iciency of the evidence of "grand jury obstruction."

1. Wiretap Obstruction

As a foundation for this charge, Customs Agent Jame s Delia testified that the Giampa Crew wiretaps were reviewed every ten days by the district court that authorize d them. Davis does not contest this, but argues that a wire tap is not a "pending judicial proceeding" within the mean ing 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 co uld 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 ex ample, intentionally interfering with the execution of a s earch warrant by warning its target to conceal or dispose of evidence does not involve a pending judicial procee ding and

therefore falls outside of S 1503. See United State s v. Brown, 688 F.2d 596, 598 (9th Cir. 1982). Investiga tion by agents of the Treasury Department "or some other li ke instrumentality" of the United States does not cons titute a pending proceeding. United States v. Perlstein, 126 F.2d 789, 792 (3d Cir. 1942); see also United States v. Simmons,

___________________________________________________ ______________

1. We do so because Davis's acts indicated that he surmised the existence of the Customs wiretap, and he interfered with its success. By contrast, there was no evidence that he had any ide a that the FBI wiretap existed, and the government did not argue t hat his acts

interfered with its success. It was evident in cont ext that the charged "wiretap obstruction" involved the Customs investig ation, just as the "grand jury obstruction" did.

8591 F.2d 206, 208 (3d Cir. 1979) ("[T]he obstructio n of an

investigation that is being conducted by the FBI, o r by any similar governmental agency or instrumentality, doe s not constitute a S 1503 violation because such agencies or instrumentalities are not judicial arms of the gove rnment `administering justice.' "). Even probation supervi sed by court-appointed officers does not constitute a pend ing proceeding. See Haili v. United States, 260 F.2d 74 4 (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 activel y by a federal district court, citing United States v. Agu ilar, 515 U.S. 593 (1995), and United States v. Walasek, 527 F.2d 676 (3d Cir. 1975). However, Aguilar does not suppo rt the government's claim. Indeed, in that case, the gover nment charged the defendant's wiretap-related conduct und er a separate statutory provision that prohibits reveali ng 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 15 03, we

wrote:

Appellant would have us adopt a rigid rule t hat a grand jury proceeding is not "pending" until a gra nd 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 in clined to adopt it. Appellant is correct in his observ ation that a grand jury subpoena may become an instrument ality of an investigative agency, without meaningful judicial supervision. Nevertheless, the remedy agains t potential abuses is not to establish a rule, easily ci rcumvented,

9by which some formal act of the grand jury w ill be

required to establish "pendency." The remedy is rather to continue to inquire, in each case, whethe r the subpoena is issued in furtherance of an actu al grand jury investigation, i.e., to secure a presen tly contemplated presentation of evidence before the grand jury.

Walasek, 527 F.2d at 678 (footnote omitted) (emphas is

added).

The government seizes upon the phrase "judicial supervision" to argue that, because the wiretap was subject to judicial supervision, it is sufficiently analogo us to a grand jury investigation to qualify as a "pending j udicial proceeding." The flaw in the government's argument is that judicial supervision is not the test; the test is w hether there is a judicial proceeding. Walasek considered the ro le of the grand jury in investigations, and we decline to rea d one phrase in that decision as authorizing a sweeping expansion in the concept of "pending judicial proce edings," one for which the government has no other support.

Fundamentally, a wiretap order is an investigative method used by the executive branch, not an element of the judicial process. See United States v. Giordano , 416 U.S. 505 (1974) (discussing the history of wiretapp ing 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 funct ion of the judicial branch, but rather ensures that wireta ps-- searches--are carried out within the confines of th e Fourth Amendment. See United States v. Cafero, 473 F.2d 48 9 (3d Cir. 1973).

We conclude that a wiretap order is more like a sea rch warrant than it is like a grand jury and that its p endency does not constitute the "administration of justice" within the meaning of S 1503. See Brown, 688 F.2d at 598. It follows that Davis cannot be convicted of violating S 1503 for intentionally interfering with a wiretap.

2. Grand Jury Obstruction

A grand jury investigation clearly qualifies as a p ending judicial proceeding under S 1503. See United States v.

10Wood, 6 F.3d 692, 696 (10th Cir. 1993). The Distric t Court,

in its written opinion upon Davis's sentencing, fou nd that there was a pending grand jury investigation into o rganized crime and the Giampa Crew in particular at the time of Davis's acts. However, the trial record is nearly b arren of any evidence of this fact. The government identifie s one piece of evidence in support of its contention--the testimony of Agent Delia, who testified that, befor e obtaining the wiretap order of January 13, 1994, Cu stoms 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 proce ss of investigating the people whose records were subpoen aed or that the subpoena issued in furtherance of a presen tly contemplated presentation of evidence before a gran d jury.

As in many districts in modern times, a grand jury is always empaneled in the District of New Jersey, whi ch comprises the entire state of New Jersey. For that very reason, the mere existence of a grand jury in a dis trict does not trigger S 1503; the grand jury must have some relationship to the investigation that is obstructe d. See Nelson, 852 F.2d at 711. Nor is the issuance of a s ubpoena automatically proof of a pending grand jury investi gation.

As we wrote in Nelson:

Fed. R. Crim. P. 17(a) provides for issuance of subpoenas "signed and sealed but otherwise b lank to a party requesting it, who shall fill in the b lanks before it is served." Because these subpoenas are i ssued without meaningful judicial oversight, the p endency of a grand jury investigation cannot be determi ned from their face alone. Not every investigation in which grand jury subpoenas are used ripens into a pendin g grand jury investigation for purposes of 18 U.S.C. S 1503.

Id.

Thus, the government must show something more than that a grand jury exists in the district and that s ubpoenas have issued in order to prove that a judicial proce eding 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

11Walasek, 527 F.2d at 678, but the record in this ca se is

devoid of any evidence of such a connection. There is no testimony that the subpoena was issued in furtheran ce of an ongoing or presently contemplated presentation o f evidence to the grand jury. We cannot, consistent w ith our precedent, find Agent Delia's testimony about the s ubpoena

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 p ending proceeding necessarily lacks the intent to obstruct that proceeding. See Aguilar, 515 U.S. at 599; Pettibone v. United States, 148 U.S. 197, 206 (1893). The Aguila r Court explained that recent decisions of the appellate co urts have placed certain boundaries on S 1503's apparently br oad sweep. For example, the defendant's action "must be with an intent to influence judicial or grand jury proce edings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation inde pendent of the court's or grand jury's authority." Aguilar, 515 U.S. at 599 (citing Brown, 688 F.2d at 598)."[I]f the de fendant lacks knowledge that his actions are likely to affe ct the judicial proceeding, he lacks the requisite intent to

obstruct." Id.

The government concedes that there is no record evidence that Davis had actual knowledge of a grand jury proceeding, but argues that the evidence was suffic ient to support a conviction on the ground that Davis infer red 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. H e received assurances from a FBI agent that Sabol wou ld serve a lengthy sentence. In light of the fact that Davis was a police officer, the District Court found that the re was a sufficient basis to conclude that Davis knew or bel ieved that Sabol was only out of prison because he was an informant or cooperating witness in some federal investigation. Indeed, Davis communicated this beli ef to Michael and Vittorio, and, in the District Court's view, the jury could take him at his word, even though he lat er claimed that he was just bluffing to get Sabol out of his life.

12The District Court concluded that Davis's failure t o take

proper police action from December 25, 1993 (when h efirst learned about Sabol's link to Vittorio), through Ma rch 4, 1994, justified an inference that Davis knew that S abol 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 tha t 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 wa s 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 fai ls to go far enough to show Davis's knowledge of a grand jur y investigation. There was no evidence that Davis con cluded that Sabol was involved in a grand jury-based inves tigation. Agent Geer and Davis's superior, Larry Wirsing, bot h testified that a police officer would likely conclu de that a person in Sabol's situation was or had been an info rmant. Both men formed the impression that Davis had reach ed this conclusion, though nothing explicit was said. But informants and investigations exist without grand j uries.

We cannot find in this record a shred of evidence t hat

Sabol's status as an informant would have led Davis to conclude that Sabol was involved in an investigatio n related to a pending grand jury proceeding.

___________________________________________________ ______________

2. The District Court also noted that Davis reporte d his contacts with Vittorio to his supervisor, Larry Wirsing, on March 4, 1994. At that point, Wirsing and Davis contacted FBI Agent John T ruslow. The court found that the jury could have viewed Davis's conta cts with authorities as another attempt to rid himself of Sabol's presen ce. 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 Sa bol for associating

with Vittorio.

13In United States v. Frankhauser, 80 F.3d 641 (1st C ir.

1996), the defendant took a number of acts to cover up evidence of hate crimes. The evidence clearly showe d that he was aware of an FBI investigation into the crime s. The court, after scouring the record, found no evidence that the defendant knew or had notice of the pending grand j ury proceeding. The government offered two pieces of ev idence 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 cl ear that he meant to say "search warrant." In addition to finding that this was an irrelevant misstatement, t he court also held that, even if the defendant was referring to a subpoena, there was no way to infer from this state ment that he knew that a grand jury proceeding was under way, rather than merely a future possibility. See id. at 650. The government's second piece of evidence was similar t o the government's evidence in this case: A witness testi fied that

the defendant knew that the crimes were under "investigation." The court found that "we see no wa y the jury could have inferred that the investigation was by a grand jury rather than by the FBI." Id. Frankhauser , which we find persuasive, strongly supports Davis's argum ent, as it clearly distinguishes simple awareness of a fede ral investigation from knowledge of a pending judicial proceeding.

The only relevant case from this circuit involves p olice

officers who beat a civilian to death and then took actions to cover up their misbehavior. See United States v. Messerlian, 832 F.2d 778 (3d Cir. 1987). The defend ants argued that there was no evidence that they could h ave foreseen that federal judicial proceedings were in the offing when they committed their obstructive conduct. We f ound that the defendants, ten- and twenty-five-year vete rans of the New Jersey State Police, could, by reason of th eir positions, be expected to know that federal grand j ury investigations often follow when an arrestee dies suspiciously in police custody. See id. at 794 n.23 . By contrast, we do not think that a police officer, pa rticularly a transit police officer, should ordinarily expect that an informant is involved with a grand jury investigati on, and the government offered no testimony to the contrary . Intent

14to influence an investigation, which the evidence c learly

supports, is insufficient to sustain a conviction u nder S 1503. See Aguilar, 515 U.S. at 599.

The government's proof in this case is deficient in two respects: First, it failed to show that the NYNEX s ubpoena was issued pursuant to a presently contemplated presentation of evidence to a grand jury. Second, i t 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 cou nt must

therefore be reversed.

B. Conspiracy to Obstruct Justice

Count 1 of the indictment charged conspiracy to obs truct justice in violation of 18 U.S.C. S 371. The suffic iency of the evidence in a conspiracy prosecution requires close scrutiny. See United States v. Schramm, 75 F.3d 156 , 159 (3d Cir. 1996). In order to prove a conspiracy to o bstruct justice, the government must establish that there w as an agreement whose object was to obstruct justice, tha t the defendant knowingly joined it, and that at least on e overt act was committed in furtherance of the object of t he agreement. See United States v. Mullins, 22 F.3d 13 65, 1368 (6th Cir. 1994). Circumstantial evidence may b e used to prove all the elements. See United States v. Kap p, 781 F.2d 1008, 1010 (3d Cir. 1986). It is the first ele ment--the existence vel non of an agreement to obstruct justi ce--that

is in issue here.3

___________________________________________________ ______________

3. The lack of evidence that a grand jury proceedin g was pending is not dispositive on this count. In Perlstein, there was a conspiracy surrounding an illegal still. The conspiracy to sup press evidence and keep potential witnesses away from any investigatin g 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 offens e of obstruction of justice could not have been committed at the incept ion 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 fo r conspiracy to obstruct justice. Perlstein, 126 F.2d at 795.

15The District Court ruled that the evidence that Dav is had

informed Vittorio, Michael, and Maria of the Custom s investigation and of Sabol's status as a confidenti al informant was sufficient to establish that he consp ired 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 betwe en Davis and Vittorio. Davis provided Michael and Vitt orio with information about Sabol's Georgia conviction, inclu ding the names of an FBI agent and an AUSA involved in the c ase, 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 cooperatin g with the government and that the cell phones that Sabol gave to Vittorio, McManus, and Giampa were tapped. The tape d conversations from January 25 to March 2 corroborat ed Vittorio and Michael's testimony.

It is clear that the parties involved in this intri gue had different motives. Vittorio wanted to protect his confederates and himself; Davis wanted to hurt Sabo l; Michael wanted to please Maria by helping her broth er with his personal problems, and he also wanted to protec t his childhood friend. Davis contends that this disprove s a conspiracy. We disagree. If they all agreed to inte rfere with a pending judicial proceeding, they are guilty of c onspiracy.

That is the difference between motive and intent.

A conspiracy requires agreement between at least tw o people to the illegal object of the conspiracy, tho ugh other

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It is unclear to what extent this 1942 decision sur vives Aguilar, since much of the conduct alleged in Perlstein probably w ould fail Aguilar's nexus test, which requires that an obstructive act be likely to interfere with a grand jury rather than simply likely to inte rfere with an investigation. More importantly, however, Perlstein concerned a situation in which a jury could find that the defendants cont emplated a federal investigation, and the defendants admitted that the y knew of the grand jury investigation once it began. See Perlstein, 12 6 F.2d at 795.

Perlstein does not change the requirement that there has to b e some proof that the conspirators knew of or anticipated a grand jur y investigation.

16participants need not be indicted. See United State s v.

Delpit, 94 F.3d 1134, 1150 (8th Cir. 1996); United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987). The c ritical flaw in the government's case is that there is no e vidence in the record that any of Davis's alleged coconspirato rs had the necessary awareness of a pending or threatened judicial proceeding. In United States v. Molt, 615 F.2d 141 (3d Cir. 1980), we reversed a conspiracy conviction because, while there was overwhelming evidence that the defendant violated the substantive law, there was insufficien t evidence of his alleged coconspirators' knowledge. "[W]hen k nowledge is an essential element of the underlying substanti ve offense, it must be proven that all co-conspirators possess the requisite knowledge." Id. at 146. That is, a pe rson cannot conspire with himself; at least two conspira tors must have sufficient knowledge in order for there t o 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 o ther alleged coconspirators were police officers. Two ac tually

testified: Vittorio and Michael. Both testified for the government, though Michael was something of a hosti le witness, and neither testified about his knowledge of a pending or foreseen judicial proceeding. While Vitt orio was clearly a wrongdoer, and Michael and Maria no doubt knew that Davis's actions were not legitimate, we cannot find any evidence that would allow a reasonable jury to conc lude that they conspired to obstruct a judicial proceedi ng. Cf. Schramm, 75 F.3d at 160 (a defendant could not be convicted of conspiracy to commit mail fraud where there

was no evidence that the defendant knew of the mail fraud, though he knew of many other illegal acts by his al leged coconspirators). Therefore, Davis's conspiracy conv iction

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 i n aid of racketeering in violation of 18 U.S.C. S 1952, w hich provides in relevant part that

17[w]hoever . . . uses any facility in interst ate or foreign

commerce, with intent to . . . promote, mana ge, carry on, or facilitate the promotion, management, establishment, or carrying on of any unlawfu l activity, and thereafter performs or attempts to perfo rm [any of the acts specified commits an offense agains t the United States].

The "unlawful activity" charged is a violation of N ew York Penal Law S 200.25, receiving reward for official

misconduct:

A public servant is guilty of receiving rewa rd for official misconduct in the second degree when he soli cits, accepts or agrees to accept any benefit from another person for having violated his duty as a pub lic servant.

Under New York law, "benefit" is defined to include "any gain or advantage to the beneficiary and includes a ny gain or advantage to a third person pursuant to the desi re or consent of the beneficiary." N.Y. Penal LawS 10.00( 17) (McKinney 1988), and the court so instructed the ju ry. The law does not require an agreement between the two p arties, 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 pol ice 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 f orm of Sabol's return to prison or Sabol's murder. Davis m ade a phone call to Pelatti's residence on February 18, 1 994, that suggested that he perceived Sabol's presence as imp eding his attempt to reconcile with Pelatti, and the gove rnment argues that his hope of ending Sabol's newfound fre edom

was a sufficient "benefit."

Although the New York Court of Appeals has not construed Penal Law S 200.25, the extant case law s uggests that the government's theory of benefit goes too fa r. In People v. Hyde, 141 N.Y.S. 1089 (App. Div. 1913), t he defendant, who had authority to deposit city money in banks, asked a bank manager to extend a loan to a f riend of his, in return for which the defendant promised that he

18would increase the amount of city funds on deposit at the

manager's bank. He was charged with receiving a bri be.

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 simila r to that proffered in this case, which is that the defe ndant's request for something is proof enough that getting it would

be a "benefit" to him:

The People . . . contend[ ] that the mere fa ct 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 constitute d 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 som ething more than the personal satisfaction arising from the gratification of a wish. There must be somet hing more flowing to the person who asks the favor--so mething of value to him, not necessarily of pecuniary o r intrinsic value, but value in the sense of a personal advantage of some sort. The word "advantage" must be g iven its commonly accepted and natural meaning of som ething accruing to the benefit of the person receiv ing it.

. . . . [A bribe] must consist of something real, substantial and of value to the receiver, as distinguished from something imaginary, illu sive, or amounting to nothing more than the gratifica tion of a wish or hope on his part.

Id. at 1093 (emphasis added). Hyde is still commonl y cited in prosecutions under section 200.25 and related la ws.

The most recent relevant case is People v. Feerick, 671 N.Y.S.2d 13 (App. Div. 1998). The majority sustaine d

convictions under section 200.25 where the defendan ts, who were police officers, had committed various abu ses of authority in their search for a lost police radio. The majority concluded that the return of the radio was "a speci fic, personal benefit to these defendants as well as a b enefit to

19the Police Department." Id. at 21-22. The radio was being

used by drug dealers in the area both to taunt the police and to monitor their activity, causing the officers embarrassment and jeopardy. See id. at 22. The case produced a vigorous dissent, which argued that the radio was only tenuously connected to the officers and th at 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 satis faction of getting the radio back. Similarly, it argues, telli ng Vittorio about Sabol offered Davis the psychic benefit of ha rming

Sabol. But Feerick did not turn on the defendants' nonpecuniary motives for seeking the radio; under t he statute, a public servant is guilty if he solicits an item with de minimis market value but great personal value. T he question is whether we can find anything sufficient ly welldefined here that we might identify as a "benefit."

Other cases emphasize that a "benefit" must be defi nite in some way, although it need not be tangible. In P eople v. Dolan, 576 N.Y.S.2d 901 (App. Div. 1991), the defen dant, a police officer, was accused of attempted bribery an d attempted bribe receiving for threatening to stop transporting prisoners of a separate police jurisdi ction to the County Jail unless the Sheriff of the other jur isdiction agreed to limit investigations by his department in the defendant's jurisdiction. The prosecution argued th at the "benefit" sought by the defendant was "a lessening of the possibility of discovery of alleged drug use by def endant and his friends." Id. at 904. The court rejected th is theory and dismissed the charge. The court found that the benefit was not "real, substantial and of value," but was r ather "imaginary, illusive or amounting to nothing more t han the gratification of a wish or hope." Id. (citing Hyde)

.

The Dolan court also dismissed a charge that the defendant received a benefit from agreeing to refra in from prosecuting a woman. The alleged benefit was that, in return for his forbearance, she would become a conf idential police informant. The prosecution argued that the"b enefit" was that the defendant got a personal relationship with the

20informant so that she would give him information ab out

undercover Sheriff's operations relating to drug us e by him

and his friends. The court found that "such a benef it would be highly speculative and consist only of a remote wish or an illusive hope on his part." Id.

In People v. Esposito, 554 N.Y.S.2d 16 (App. Div. 1 990),

the chief of the Metro North Railroad Police conduc ted an unauthorized criminal record check on a company employee, in violation of his duty as a public serv ant. The alleged "benefit" was the utility to his employer o f knowing relevant information, but the court found that this was too ill-defined to fall within the statutory prohibitio n. Likewise, in People v. Cavan, 376 N.Y.S.2d 65 (Sup. Ct. 1975) , the defendant was charged with bribery when, on his arr est, he offered to assist the police in catching drug deale rs in return for leniency. The court held that

the benefit must not be so remote, abstract, or theoretical as to create speculation as to i ts ultimate value to the receiver. In the case at bar, i t is doubtful if a vague offer to turn State's evidence, w ithout anything further, constitutes such a benefit in the

statutory sense.

Id. at 67.

In People v. Adams, 382 N.Y.S.2d 879 (County Ct. 19 76), the defendant, a legislator, was part of a committe e studying off-track betting. He prevailed upon an em ployee of a firm that had made a formal presentation to th e committee to ghost-write a final report for the com mittee.

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 wro ng done to the people by corruption in the public servi ce." Thus, the public servant who agrees to and does ma nipulate events, not to benefit himself or a third pa rty, but for the personal satisfaction of commanding obed ience, is

said to receive no bribe.

Id. at 881 (citations omitted) (emphasis added). Th e court found that the supposed "benefit" was too nebulous to support a charge of receiving reward for official m isconduct,

21in that little credit would redound to him for the

committee's report and there was no evidence that h e 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 woul d convert all violations of duty that involve at leas t one other person into violations of this statute. Under that approach, if an officer harasses a citizen, he or she receive s 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 oc cur, that person receives a benefit, and the benefit wou ld be "pursuant to [the officer's] desire and consent," w ithin the prohibition of the statute. (The statute does not r equire 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 th eory converts Davis's violation of his duty into a "bene fit" by virtue of his desire to violate his duty and his ho pe for satisfaction from doing so.

Where the alleged benefit consists of an intangible course of conduct, we think that it must be sufficiently s pecific to constitute a clearly defined and direct advantage t o the defendant, or to a third party in whom he has some interest. Compare Dolan, 576 N.Y.S.2d at 404 (alleg ed benefit of lessened possibility of discovery of the defendant's other misconduct was insufficiently specific to fal l within the statute), with People v. Hochberg, 404 N.Y.S.2d 161, 167 (App. Div. 1978) (a person's agreement not to r un 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 theo ry that

Davis wanted Sabol out of his life and did not care how, whether the mechanism was: (1) that Sabol's coopera tion failed to produce results so that Sabol would retur n to prison; (2) that Sabol would be charged with violat ing his parole; or (3) that Sabol would be killed. Davis ha d 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.

22The government has, however, a narrower theory, whi ch

it also argued to the jury: Davis wanted Vittorio t o give him a gun in return for his damning information. Althou gh the issue is close, we think that this is too tenuous a ground on which to uphold Davis's conviction. The link bet ween the gun and the violation of duty is far more atten uated than what the New York courts seem willing to accep t. In Feerick, for example, the only way for the officers to get what they wanted was to get the radio, while here r eceiving 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 hypothet ical.

Moreover, Davis's request for a gun was not necessa rily tied to his violation of duty, nor was it in any wa y tied to his status as a police officer. If Vittorio had alr eady known about Sabol's status, Davis could just as readily h ave asked for the gun, and Vittorio would have had as much re ason 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 physi cal force, threatens, or corruptly persuades another pe rson, 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 S tates of information relating to the commission or po ssible

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

23communicate information to a law enforcement office r is

enough to create liability under the statute. See U nited States v. Kozak, 438 F.2d 1062, 1066 (3d Cir. 1971) . As discussed above, a reasonable jury clearly could ha ve found that Davis believed that Sabol was communicating wi th the

authorities.

To be criminally liable, the defendant must know th at his conduct has the natural and probable effect of inte rfering with the witness's communication, whether or not it succeeds. See United States v. Kenny, 973 F.2d 339, 344 (4th Cir. 1992). Davis indicated that he wanted Vit torio to stop dealing with Sabol and warned Vittorio that Sa bol was "setting him up." He also hoped that Vittorio would kill Sabol. The government argues that the natural, fore seeable, and probable consequence of Davis's acts was that S abol would be killed or otherwise prevented from gaining and conveying information. Although we find the governm ent's theory extremely broad, we conclude that Davis's co nduct 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 tamp ering. 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 th e 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 appare ntly constitute witness tampering by Michael. Indeed, a lawyer's instruction to a client not to speak to potential g overnment witnesses, including government investigators, woul d also apparently constitute witness tampering by this the ory, except that the statute excludes lawful, bona fide legal services in connection with or anticipation of an o fficial 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 whe n approached by potential witnesses.

24Our rejection of the government's broad theory has a

basis in the statute. Because there is no allegatio n that Davis used misleading conduct,4 intimidation, physi cal force, or threats, we limit our inquiry to whether he engaged in "corrupt persuasion" with the relevant i ntent.

2. Corrupt Persuasion

The Ninth Circuit has held that lying to a witness is not corrupt persuasion, though appealing to a witness t o avoid testifying truthfully in order to protect one's car eer would be. See United States v. Aguilar, 21 F.3d 1475, 148 5-86 (9th Cir. 1994) (en banc), rev'd on other grounds, 515 U.S. 593 (1995). United States v. Poindexter, 951 F.2d 3 69 (D.C. Cir. 1991), gives more guidance on the meaning of c orrupt persuasion. Poindexter interpreted 18 U.S.C.S 1505, which prohibits obstructing proceedings before congressio nal committees. Poindexter was charged with obstruction of justice for lying to Congress, which the government argued was "corrupt persuasion." The majority held that th e term could not be extended to encompass simple lying to a congressional committee.

As the court explained, "corruptly" has two possibl e meanings, transitive and intransitive. The transiti ve meaning would involve persuading another by means o f 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 unconst itutional vagueness, and also because the other terms in the statute were transitive ("by threats," "by force," etc.). I t further found that "corrupt persuasion" could not be cabine d simply by saying that the term covered "influencing another to act `immorally' or `improperly,' " as that simpl y substitutes one indefinite term for another.

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4. Several courts have held that asking a witness t o tell what he knows to be a lie is not misleading conduct because there is nothing misleading about a request to lie. See, e.g., United States v. Kulczyk, 931 F.2d 542, 546 (9th Cir. 1991); United States v. King, 762 F.2 d 232 (2d Cir. 1985). The government has not identified any way in which Davis's conduct was misleading. Indeed, on the government's own theory he told the truth as he perceived it: Sabol was an informant. If asking for a lie is not misleading to the target, surely telling the truth is not.

25The Poindexter court determined that corrupt persua sion

is " `corrupting' another person by influencing him to violate his legal duty," id. at 379, and that the"core" of the statutory prohibition of corrupt persuasion was aim ed at a person who, "for the purpose of influencing an inqu iry, influences another person (through bribery or other wise) to violate a legal duty," id. at 385. See also United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996) (influe ncing a witness to violate her legal duty to testify truthf ully constituted corrupt persuasion under S 1512(b)).

We approved of Poindexter's reasoning in theS 1512 context in United States v. Farrell, 126 F.3d 484 ( 3d Cir. 1997). Farrell was convicted of witness tampering f or attempting to dissuade a coconspirator from providi ng information to federal investigators about Farrell' s involvement in a conspiracy. We reversed his convic tion:

Without any definitional assistance, we find the phrase "corruptly persuades" to be ambiguous. We ag ree with Farrell that the phrase cannot mean simply " persuades

with the intent to hinder communication to l aw enforcement" because such an interpretation would render the word "corruptly" meaningless.

Farrell, 126 F.3d at 487. While we were confident t hat bribing someone to withhold information or persuadi ng someone to provide false information would be corru pt persuasion, we declined to define the term more abs tractly.

See id. at 488. Farrell concluded that the statute did not cover a noncoercive attempt to persuade a coconspir ator who had a Fifth Amendment right not to disclose information about the conspiracy to refrain, in acc ordance with that right, from volunteering information to investigators. See id. at 488.5

The government argues that Farrell is distinguishab le because the defendant in that case was acting in furtherance of his own interest in avoiding a cocon spirator's disclosure of a crime, while here Davis was a malic ious

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5. We declined, however, to resolve whether discour aging the testimony of a potential witness who did not possess a Fifth Amendment privilege

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

26interloper. While we agree that Davis may have viol ated

S 1512(b), see infra, we caution that Davis's malic ious purpose to expose an informant is insufficient unde r Farrell to justify a conviction:

We read the inclusion of "corruptly" in S 15 12(b) as necessarily implying that an individual can "persuade"

another not to disclose information to a law

enforcement official with the intent of hind ering an investigation without violating the statute, i.e., without doing so "corruptly." Thus, more culpability is required for a statutory violation than that involved in the act of attempting to discourage disclosure in order to hinder an investigation.

Id. at 489.

Davis may be properly convicted under S 1512(b) bec ause there was testimony that he suggested that Vittorio should kill Sabol and asked Vittorio for a gun so that Dav is himself could kill Sabol. By suggesting that Vittorio shoul d "do something" about Sabol or get Davis a gun, Davis ur ged Vittorio to violate his legal duty not to kill Sabo l or aid in

Sabol's death. This conduct would constitute "corru pt persuasion" under the statute. The fact that Davis never had direct contact with Sabol is irrelevant, becaus e all that is required under S 1512(b) is that a defendant cor ruptly 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

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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`corruptl y' means having improper motive or purpose of obstructing justice." SA at 1426. Farrell and Poindexter suggest that this instruction provid es insufficient guidance to the jury, as anyone with the intent to interfere with an investigation has "improper" motives. On remand, th e Court should clarify that "corrupt persuasion" involves more tha n an improper motive,

and includes inducements to violence.

27III. The Intoxication Instruction

Having decided that there is sufficient evidence fo r a conviction under S 1512(b), we turn to the question whether

Davis is entitled to a new trial because the Distri ct Court refused to provide an intoxication instruction conc erning his specific intent. A defendant is entitled to an instruction on his theory of the case where the record contains evidentiary support for it. See Government of V.I. v. Carmona, 422 F.2d 95, 99 n.6 (3d Cir. 1970). A cour t errs in refusing a requested instruction only if the omi tted instruction is correct, is not substantially covere d by other instructions, and is so important that its omission prejudiced the defendant. See United States v. Smit h, 789 F.2d 196 (3d Cir. 1986). We first consider whether Davis preserved the issue for appellate review, and then evaluate the merits of his request.

A. The Request for Instruction

When Davis's trial counsel initially raised the iss ue of an intoxication charge, the District Court was uncerta in that such an instruction was required and requested brie fing on the issue. The record reveals the following exchang e on March 20, 1998, a Friday:

Mr. Cascione: I made an additional submissio n which I gave Mr. Sierra, so if he wishes to cover it during his opportunity for an intoxication charge becau se I saw some reason for it as the proof came out.

I will submit it to the Court so that the C ourt 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 y ou 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 i n the area; we take judicial notice of the snowstorm. See Elise Young & Barbara Williams, North Jersey Gets a Taste of

28What Might Have Been: Winter Lands a Late Blow, Ber gen

County Record, Mar. 23, 1998, at A1 (stating that u p to six inches fell in New Jersey, disrupting traffic). On Monday, March 23, 1998, defense counsel stated that the inc lement weather had disrupted his research, and, when speci fically asked about the intoxication charge, stated:

I have the submission. I was prepared to giv e the Court citing from Blackmore [sic]. There is an Eig hth Circuit case on it that I was not able to obtain yes terday.

The statement obviously refers to E. Devitt & C. Bl ackmar, Federal Jury Practice and Instructions, the veritab le "bible" on the subject, which virtually every federal distr ict 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, y ou haven't given me the charge, you haven't giv en me any law on it. I came in early to handle it. . .

.

I know the whole idea behind this is for yo u 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 g oing 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 apparent ly rejected the charge because of counsel's failure to brief th e 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 cann ot agree on whether these papers were in fact submitte d to the

District Court.7 We need not resolve the conflictin g

___________________________________________________ ______________

7. The government argues that these papers were nev er submitted to the District Court, and that the Court's subsequent ref erence to defense

29accounts, because we conclude that Davis's counsel

brought the intoxication issue to the Court's atten tion with sufficient clarity to preserve the issue, even assu ming that he did not provide the Court with any written submi ssion.

The government argues that Davis waived the issue b y failing to brief it to the District Court. Waiver, however, is an intentional relinquishment of a known right. See United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 199 5). Davis's counsel did not relinquish his request for an intoxication instruction, though he failed to suppl y the court with precedent in support of his request. We are persuaded that the appropriate inquiry is whether d efense counsel's acts preserved the issue for appellate re view. See United States v. Russell, 134 F.3d 171, 178-79 (3d Cir. 1998).

In general, if an instruction is timely requested, is supported by the evidence, and correctly states the law, it should be given. See, e.g., United States v. Jerde, 841 F.2d 818 (8th Cir. 1988); United States v. Hicks, 748 F. 2d 854 (4th Cir. 1984). However, counsel is required to dr aw the court's attention to a specific instruction, or to a problem with an instruction, in order to put the court on n otice so that a possible error may be corrected before the j ury begins to deliberate. See United States v. Scarpa, 913 F.2d 993, 1020 (2d Cir. 1990); United States v. Kaplan, 832 F.2d 676, 682 (1st Cir. 1987). As we have explained:

The specificity requirement imposes a strict standard on defense counsel, but it is not a mere for malism.

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counsel's Devitt and Blackmar excerpts referred to materials submitted in response to other portions of the proposed charg e. See SA at 1288 (District Court refers to excerpts from Devitt & Bl ackmar and Aguilar submitted by defense counsel). The government submi ts that it included the proposed intoxication charge in the appellate r ecord, 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 pos ition that the instruction was submitted to the Deputy Court Clerk on the morning of March 23, 1998, and was properly included in the ap pellate record.

Davis's trial counsel offered to submit an affidavi t to this effect, but

we have found it unnecessary for him to do so.

30Without a clearly articulated objection, a t rial judge is

not apprised sufficiently of the contested i ssue and the need to cure a potential error to avoid a ne w trial.

Government of V.I. v. Knight, 989 F.2d 619, 631 (3d Cir. 1993).

At the same time, the requirement that counsel make specific requests is not designed to be a trap. Our cases suggest that a request for an instruction need only be sufficiently clear to enable the trial judge to fai rly evaluate it. In United States v. Werme, 939 F.2d 108 (3d Cir . 1991), for example, one of the government's witnesses had pled guilty to receiving the very bribe for which the de fendants were on trial for giving. We held that the followin g statements constituted a sufficient request for a l imiting instruction against using the guilty plea as eviden ce of the defendant's guilt:

[I]f they introduce that specific conviction , we're

entitled to an instruction at a later time a s far as the weight that should be given that. . . . The fact that he entered a plea to a bribery transaction invo lving $3,000 cannot be used to infer that we were guilty of paying

the bribe.

Id. at 114. We note that counsel in Werme did not c ite any precedent to justify his request. Werme nonetheless found that counsel had clearly taken issue with the offer ed evidence and requested a curative instruction. See id. at 115; see also Russell, 134 F.3d at 178-79 & n.4 (th e purpose of federal rules governing jury instruction s is to give a trial court "notice of potential error" and "the underlying basis for the objection" rather than to force parties to follow formal or technical requirements) ; United States v. Kwong, 14 F.3d 189, 195 (2d Cir. 1994) (" While the objection could certainly have been more focuss ed, we

find that it was sufficient to alert the trial cour t and the government to the serious Braxton violation they we re about to commit.").

The events in this case raise the question of the p roper allocation of responsibility between lawyer and jud ge. A judge should require counsel to participate in the process of crafting instructions. However, the issue here i s not

31arcane. Indeed, not only is the appropriate instruc tion 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 d efense 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, whe re an adequate instruction is available in a standard cha rge book, the trial court cannot leave everything to th e lawyers. The judge has an immanent obligation to research th e law and craft an appropriate charge. This obligation ca nnot be avoided by requiring the lawyers to file legal memo randa on a pedestrian issue and then considering them not to have preserved the issue if they do not. If the requeste d instruction were complex and involved subtle questi ons of law, the situation would be different and the lawye rs would have the laboring oar, but in this case we are unwi lling to deem the request unpreserved merely because defense counsel did not present the Court with a copy of th e 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 requirin g memoranda. However, there was a snowstorm that interfered with counsel's ability to present materi al 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 cr iminal defense counsel who are immersed in trying a comple x case should be deemed to have failed to preserve an issu e of this sort for neglecting to produce memoranda over a wee kend, even without a snowstorm. While far from perfect, d efense counsel's request was straightforward and required

consideration on its merits. In these circumstances , we conclude that Davis's counsel properly preserved th e issue for our review by making his request for an intoxic ation instruction clearly and specifically, even though h e failed to provide precedent in support of the proposed instru ction. Cf. Russell, 134 F.3d at 178 n.4 (adopting a"flexib le, common-sense interpretation" of the rules for prese rving objections to proposed instructions).

32B. Was the Instruction Justified?

All of the charged crimes were specific intent crim es, and intoxication can negate specific intent. See United States v. Williams, 892 F.2d 296, 303 (3d Cir. 1989). Davis a rgues that he was drunk at the relevant times--his Januar y 25 and March 2 meetings with Vittorio--and indeed all witnesses agree that he was drinking heavily on tho se dates.

Michael testified that, immediately before Davis sa w Vittorio on January 25, Davis was "ossified . .. . [d]runk beyond drunk, slurring, he walked in with two bottl es of wine." Michael's testimony indicated that Davis was drunk and slurring throughout the part of the conversatio n that he witnessed. On his part, Vittorio testified that when he first saw Davis on January 25, "he had some jeans o n with

no shirt and he seemed a little disheveled. He seem ed very paranoid." Vittorio and Davis then went to a bar, J ester's Pub in Yonkers, to continue the conversation away f rom 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. Davi s himself testified that he was drinking before he ca lled 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 sim ilar. 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 l ot so he probably can handle a few drinks. He was a little b uzzed, definitely by the time I left by the way he was dri ving." After the discussion, Davis drove Vittorio home, and Vitt orio

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 cr ash and kill himself or something . . . ." Finally, Vit torio stated

33that "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, mo st

courts have held that a defendant needs more than

evidence of intoxication. He also needs some eviden ce of interference with his ability to form the relevant intent. See, e.g., United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998); United States v. Washington, 819 F.2d 2 21, 225 (9th Cir. 1987). In Government of the Virgin Island s v. Carmona, supra, however, we apparently set forth a different rule, as we found an intoxication instruc tion required in a felony murder case when the only evid ence of intoxication was that the defendant had a large amo unt to

drink.

The government argues that our Carmona holding was

dicta because we reversed the defendant's convictio n on the alternate ground that the jury instructions failed to define robbery as a specific intent crime. However, we spe cifically found the jury instructions defective in that they failed to explain the materiality of the intoxication evidenc e. Furthermore, the errors in the intoxication charge and the robbery charge were interrelated, because they both required the jury to be informed about specific int ent. We rejected the government's claim that, because there was evidence only of intoxication and not of interferen ce with the defendant's thinking, no intoxication instructi on was required. See Carmona, 422 F.2d at 99 n.6. We rever sed because of the "errors in the charge to the jury." Id. at 101.

It may be that our rule is not substantially differ ent than that of other circuits, in that it is often difficu lt to determine what might qualify as evidence of interfe rence with ability to form intent. Carmona endorses the conclusion, justified by much human experience, tha t heavy drinking may interfere with a person's abilit y to form a specific intent. The facts in Carmona--in which t he defendant was drinking heavily in a bar, left for a few minutes, and then returned to rob it--suggested tha t the

crime could have occurred without the defendant for ming a specific intent to rob.

34At 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 dri nking, 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 th at Davis was drunk and paranoid at their first meeting on Ja nuary 25, 1994. Vittorio was so concerned about Davis's d runken driving on March 2, 1994, immediately after their s econd meeting, that he called Michael to express his conc ern. While the government notes that a jury could conclu de 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 affecte d 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 no t interfere with his ability to form the specific int ent to commit the charged crimes. It maintains that Davis' s scheme evolved over some period of time, and that h e 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. Wh ile drunk, Davis told Vittorio that Sabol was a "rat," thus evidencing that his soused mind retained this cruci al fact and that he knew that telling Vittorio would furthe r 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 n ot, in the main, involve witness tampering; the witness tamper ing was only a small part of the plan, which was in oth er respects not unlawful. As we have explained, an int ent to expose a person as an informant, while reprehensibl e, is insufficient to constitute "corrupt persuasion" und er 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 witn ess tampering.

To violate the statute, Davis had to intend to corr uptly persuade. The two instances of corrupt persuasion, on

35January 25 and March 2--asking for the gun and

suggesting that Vittorio harm Sabol--did not permea te his discussions with Vittorio, and a jury could have be lieved that Davis blurted them out drunkenly without inten ding 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 impla usible.

A jury could also find that Davis possessed the req uisite intent despite his drinking. But, to uphold Davis's conviction, we would have to find that the missing instruction was harmless error--that "it is highly probable that the error did not contribute to the judgment." Murray v. United of Omaha Life Ins. Co., 145 F.3d 143, 156 (3d Cir. 1998). We cannot say that the error was harmless on this record. See also United States v. Logan, 717 F.2d 8 4, 92 (3d Cir. 1983) (reversing for plain error where the tri al judge had notice of the defense request for an instructio n and the

evidence showed that the instruction was critical t o the defense's theory). Therefore, we will reverse Davis 's conviction for witness tampering and remand for a n ew trial.

IV. Evidentiary Issues

Davis claims that the District Court abused its dis cretion in admitting testimony that he had been found guilt y 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 probat ive value

in contravention of Rule 403. Because we are remand ing the witness tampering charges for retrial, we will evaluate the challenged evidentiary rulings. We will only di sturb a district court's decision on admissibility for abus e of discretion. See United States v. Donley, 878 F.2d 7 35, 737 (3d Cir. 1989).

The District Court allowed the prosecution to quest ion Davis about his departmental conviction because Dav is had testified about why he was dismissed from the polic e department on direct examination. He had testified that he was dismissed because Vittorio falsely claimed--in a

36conversation 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 r ecitation of the non-firearm-related departmental charges aga inst him, which largely tracked those before the jury. 8 The court ruled that the questions were appropriate to challe nge Davis's credibility, and instructed the jury to con sider themonly for impeachment purposes at the time of crossexamination.

In this case, Davis's answers implicated more than his credibility; they informed the jury that another bo dy had already found Davis guilty of the conduct charged i n the indictment, albeit only by a preponderance of the e vidence. We note in this regard that Davis had not flatly li ed when he testified that he was discharged over the gun in cident, as that was one of the reasons for his discharge al ong with his other contacts with Vittorio.9 Thus, while prob ative of Davis's willingness to edit the full truth, the cro ssexamination was more prejudicial than ordinary cros sexamination about a defendant's truthfulness with r espect

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

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8. In addition to making essentially the same charg es 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 rehabi litate Vittorio, the government's witness, as the government apparently conceded that Vittorio had lied in the statement relied upon by t he NYPD investigators and merely sought to show that there were additiona l reasons justifying Davis's discharge.

37impression, an opposing party may thereafter introd uce

otherwise inadmissible evidence to rebut or explain the prior evidence. But the government does not argue t hat Davis's direct testimony was inadmissible or explai n why it

needed to rebut Davis's account of his termination. See United States v. Forrester, 60 F.3d 52, 60-61 (2d C ir. 1995); Government of V.I. v. Archibald, 987 F.2d 180, 187 (3d Cir. 1993). Therefore, this is not a case of curative ad missibility.

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, tra nsaction, 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 ope ned up. See id. at 188; United States v. Womochil, 778 F.2d 1311 (8th Cir. 1985) (allowing the government to introdu ce otherwise inadmissible hearsay to rebut a false imp ression caused by defense counsel's elicitation of only par t of the hearsay). However, it is still unclear why the fact s 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 l ine of questioning was properly allowed to challenge Davis 's credibility. We conclude that the District Court di d not abuse its discretion in ruling that the prosecutor could ask

Davis whether there were other reasons for his term ination in order to show that Davis was unwilling to tell t he full truth. See United States v. Copelin, 996 F.2d 379, 383 (D.C. Cir. 1993) (noting that the government may, when appropriate, explore a defendant's testimony on cro ssexamination in order to impeach him). Given that th e jury was correctly instructed to consider this testimony only for impeachment purposes, the District Court did not ab use its discretion in permitting this line of questioning.

The other challenged testimony relates to Davis's p rior bad acts. The prosecutor first questioned Davis abo ut a forty-four-day suspension that he had received for misappropriating departmental gasoline for use in h is personal vehicle and putting a false name in a gas log. Second, he asked Davis about an incident in which D avis was found to have taken a subway pass away from a y oung

38man and ripped it up. During an Internal Affairs in terview,

Davis denied that he ripped up the pass, but anothe r officer found the ripped-up pass and Internal Affairs deter mined that Davis had lied. Third, the prosecutor asked Da vis about an incident in 1985 in which Davis was charge d with improperly putting a gun to a prostitute's head. Sh e claimed that Davis yelled at her, that she responde d 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 acco unts of

his acts in those three instances.

Davis notes that, under Rule 404(b), evidence of ot her 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 Federa l Rule of Evidence 608(b), specific instances of conduct m ay be inquired into on cross-examination, at the discreti on of the court, if they are probative of a witness's truthfu lness or untruthfulness. Rule 608(b) applies because the government did not introduce extrinsic evidence abo ut these other acts; all it did was ask Davis about th em.10

Inquiry into the first two incidents was clearly pr oper, because they went to Davis's truthfulness. See Dear y v. City of Gloucester, 9 F.3d 191 (1st Cir. 1993) (que stions about an incident in which a police officer-witness had been disciplined for untruthfulness were appropriat e under Rule 608(b)). Inquiry into the third incident, invo lving the prostitute, does not appear to be probative of trut hfulness and therefore it should not have been permitted on crossexamination, unless the government explains to the District

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10. A few courts have allowed cross-examination abo ut other bad acts under Rule 404(b) to challenge credibility, though we think that the correct view is that such questions are allowable u nder Rule 608. See, e.g., United States v. Wimberly, 60 F.3d 281, 285 ( 7th Cir. 1995) (allowing questions about other acts of molestation to challenge the defendant's credibility under Rule 404(b)); United States v. Chevalier, 1 F.3d 581, 583-84 (7th Cir. 1993) (same for bank fra ud in tax fraud trial; court invoked Rule 404(b) but cited only Rule 608(b ) cases).

39Court why it was probative of credibility rather th an 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 entitl ed to an intoxication instruction, we will vacate his con viction on two counts of witness tampering and remand those co unts to the District Court for further proceedings consi stent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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