1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"USA v. Davis" (1999). 1999 Decisions. Paper 205.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/205
Filed July 19, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 98-6251 

UNITED STATES OF AMERICA 

v. 

VINCENT R. DAVIS, 

Appellant 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Crim. No. 97-cr-00552) 

District Judge: Honorable Alfred J. Lechner, Jr. 

Argued: May 19, 1999 

Before: BECKER, Chief Judge, RENDELL, and ROSENN, 

Circuit Judges. 

(Filed July 19, 1999) 

 ANTHONY J. IACULLO, ESQUIRE 

 (ARGUED) 

 Iacullo & Saluto, P.C. 

 103 Park Street 

 Montclair, NJ 07042 

 Counsel for Appellant 
 FAITH S. HOCHBERG, ESQUIRE 

 United States Attorney 

 MAUREEN A. RUANE, ESQUIRE 

 (ARGUED) 

 Assistant United States Attorney 

 GEORGE S. LEONE, ESQUIRE 

 Assistant United States Attorney 

 970 Broad Street 

 Newark, NJ 07102-2535 

 Counsel for Appellee 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This appeal arises out of a bizarre factual situation that 

reads like the plot of a Grade B melodrama. It requires us 

to interpret several statutes that protect the integrity of 

federal criminal investigations. The government has

understandably attempted to find a law that criminalizes 

the conduct of defendant Vincent Davis, which is as

reprehensible as it is unusual. In the process, however, the 

government has stretched several laws beyond their 

breaking points. We conclude that the evidence adduced at 

Davis's trial was insufficient to convict him of obstruction 

of justice, conspiracy to obstruct justice, or use of a 

telephone in aid of racketeering activity (violation of a New 

York statute prohibiting receipt of any benefit for violation 

of official duty). Nonetheless, Davis's conduct is not beyond 

the reach of federal law: There was sufficient evidence to 

convict him of witness tampering. We are persuaded,

however, that he was entitled to an instruction on his 

intoxication defense to that charge and that the District 

Court's refusal to give such an instruction requires that he 

be given a new trial. Since Davis may be retried on the 

witness tampering counts, we resolve his objections to 

several of the District Court's evidentiary rulings. Because 

of our disposition of Davis's claims, we need not address 

his challenges to his sentence. 

 2 
I. Facts 

At the time of the relevant events, Davis was an officer 

with the New York Transit Police, although he was 

terminated in February 1997 following his indictment in the 

present case. Davis married Diane Pelatti in 1983, and the 

two were divorced in March 1994. Richard Sabol is a career 

criminal with lifelong ties to organized crime families. He 

and Diane Pelatti had dated in high school, and Davis 

testified that, when Pelatti and Sabol broke up, Sabol 

threatened to throw acid in her face and cut off herfingers. 

He also threatened Davis and Davis's family when Davis 

began to date Pelatti. Davis plainly developed an obsession 

with Sabol. On his own initiative, he attended Sabol's 1986 

sentencing in New York for credit card fraud; obtained a 

copy of Sabol's "rap sheet"; and discussed Sabol with Agent 

Ronald Geer, an agent for the Federal Bureau of 

Investigation ("FBI"), who was present at the 1986 

sentencing hearing. 

In 1992, Sabol was convicted in Georgia on federal drug 

charges. Davis learned of Sabol's Georgia arrest in a 

roundabout fashion: In early 1992, he received a 

threatening phone call from a person he believed to be 

Sabol. He then contacted Agent Geer to find out whether 

Sabol could have made the call. Geer told him about the 

Georgia crime and stated that Sabol was going to prison for 

many years. What Geer did not tell Davis was that Sabol 

had become an informant in a Georgia investigation, for 

which he received a sentence reduction. 

In late 1992, the U.S. Customs Service ("Customs") 

decided to use Sabol in the New York/New Jersey area to 

infiltrate the Giampa Crew, which was a branch of the 

Lucchese crime family. Sabol was acquainted with Gennaro 

Vittorio, who hoped to become a "made man" in the Giampa 

Crew. Vittorio's stepfather was Joseph Giampa, from whom 

the Crew took its name. Customs used Sabol in a ruse 

whereby Sabol told Vittorio and others that he was on work 

release and offered to engage in various illegal activities. 

From October 1993 to January 1994, Sabol gained 

Vittorio's confidence and also met others in the Crew. They 

engaged in several small-scale transactions in allegedly 

 3 
stolen merchandise, and also traded illegal guns and a 

small amount of heroin. These transactions were captured 

on video and audio surveillance. Sabol provided Vittorio 

and others in the Crew with cell phones, which became 

subject to a wiretap order on January 13, 1994. 

Meanwhile, Davis heard from various acquaintances that 

Sabol was back in town. In view of Sabol's former 

relationship with his wife, this information made Davis 

extremely upset, especially as he was having marital 

difficulties. One of the people who warned him that Sabol 

had returned was Michael Lanteri ("Michael"), who was 

married to Maria Lanteri ("Maria"), Davis's sister. Michael 

and Vittorio were childhood friends, and Michael saw 

Vittorio with Sabol. Because Davis knew that Sabol's 

Georgia conviction should have kept him in prison for many 

years, Davis inferred that Sabol must have been 

cooperating with the authorities in order to get a sentence 

reduction. 

Vittorio, who was ignorant of Sabol's Georgia history, 

became confident enough of Sabol's criminal tendencies 

that he sought to use Sabol to establish an import/export 

business in New Jersey to import drugs and export stolen 

vehicles. He gave Sabol $10,000 for this purpose on

January 24, 1994. On January 25, 1994, however, Michael 

called Vittorio. He explained that he could not speak on the 

phone but insisted that Vittorio come to the Lanteris' 

apartment because Michael had important information for 

him. Moments later, Maria also phoned Vittorio and 

repeated Michael's urgings. Soon thereafter, Vittorio used 

his tapped cell phone to call James McManus, a member of 

the Giampa Crew, and stated that he could not talk on the 

cell phone because "there is a lot of static right now," but 

that he would page McManus from a pay phone, which 

McManus should then call. This was the first indication 

that the Customs investigation was souring. 

As later testimony would show, Vittorio began to distance 

himself from Sabol because, at the Lanteris', Michael told 

him that he was being set up, that Sabol had been arrested 

for a serious crime and should not be out on the street, and 

that Vittorio's crimes were being captured on tape. Vittorio 

asked how Michael knew all this, and, after some initial 

 4 
reluctance, Michael explained that Davis told him. Vittorio 

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

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

drunk and paranoid, and he warned Vittorio that Sabol was 

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

wearing a wire, giving information to the authorities, or 

testifying in order to get a reduction in sentence.

In order to back up his story, Davis showed Vittorio a 

piece of paper with a federal prosecutor's name and Agent 

Geer's name on it. He told Vittorio that he had a good 

source for his information, an FBI agent, and that there 

was "just no way" that Sabol could be on the street without 

being an informant. Vittorio told Davis that Sabol had given 

him cell phones, and Davis responded that they were

definitely tapped. He warned Vittorio that Sabol would 

testify against Vittorio. Vittorio testified that Davis told him 

to "do something about it" and that Davis asked him for a 

gun. Although Vittorio later broached the idea of killing 

Sabol to his stepfather, the stepfather immediately vetoed 

the idea. Vittorio testified that he never seriously 

considered murder, nor did he ever consider giving Davis a 

gun. 

After that night, Vittorio and his confederates began to 

distance themselves from Sabol. On January 26, 1994, 

McManus told Sabol that he could not sign a lease for the 

warehouse needed for the import/export business because 

he had to work and because of a "serious problem." Vittorio 

told Sabol that a "minor" problem had developed. On

January 27, 1994, Vittorio called Sabol and told him to 

return the money he'd received from Vittorio only three 

days earlier. Vittorio and the others also stopped using 

their cell phones for illicit business. 

Sabol, sensing his opportunity slipping away, attempted 

to convince Vittorio of his trustworthiness. They talked on 

the phone on February 1 and February 18. Ultimately, 

Vittorio told Sabol that he had been informed that Sabol 

was working for the government. He suggested that there 

was a "crooked" FBI agent involved. This immediately 

triggered an FBI investigation into the source of the leak, as 

a result of which the Lanteris' phone was tapped. 

 5 
Vittorio eventually told Sabol that Davis was the source 

of the information. Sabol thereupon explained that Davis 

hated him because of his former relationship with Pelatti. 

By the end of the February 18 conversation, Vittorio was 

almost positive that Davis had lied to him out of 

resentment and jealousy. 

Sabol apparently contacted Pelatti that day. Pelatti 

informed Sabol that Davis had told her that he would do 

"everything in [his] power" to get Sabol back in jail. She 

also said that Davis told her that Sabol was out on work 

release and involved in illegal activities. At this point, Davis 

tried to reconcile with Pelatti and perceived Sabol as a 

threat. 

On March 2, 1994, Davis once again contacted Vittorio, 

trying to convince him that Sabol was an informant.

Vittorio dodged his calls, but ultimately the two met once 

again. Davis reiterated his earlier claims and suggested that 

Vittorio was on audio and videotape committing crimes with 

Sabol. He described his knowledge of Sabol's status as 

"gospel" and once again suggested that Vittorio should give 

him a gun. Davis was extremely drunk, at least by the end 

of the meeting. Vittorio was still unsure about Sabol; he 

sought a face-to-face meeting, believing that if Sabol were 

really an informant he would refuse such a meeting 

because of the danger to his safety. Sabol's handlers 

refused a face-to-face meeting on exactly those grounds. 

In light of Vittorio's continuing reluctance to trust Sabol, 

Customs terminated its Giampa Crew investigation in April 

1994. Indictments against members of the Crew came down 

in August 1994. Vittorio testified that, were it not for Davis, 

he would have continued to engage in illegal activities with 

Sabol, increasing his criminal liability in the resultant trial. 

As a result of the FBI investigation into the leak about 

Sabol, Davis was charged with four different crimes

comprising eleven counts: one count of obstruction of 

justice, one count of conspiracy to obstruct justice, two 

counts of witness tampering, and seven counts of using a 

telephone in aid of an unlawful act, specifically receiving a 

benefit for the violation of his official duty as a police 

officer. After a jury trial, he was convicted on all counts. 

 6 
The District Court sentenced him to forty-five months' 

imprisonment on each count to run concurrently, and a 

$550 special assessment. 

Because Davis was convicted after a jury trial, we must 

defer to the jury's verdict and view the evidence in the light 

most favorable to the government. See United States v. 

Sain, 141 F.3d 463, 466 (3d Cir. 1998). If there is

substantial evidence upon which a reasonable jury could 

have based its verdict, we should affirm. See United States 

v. Obialo, 23 F.3d 69, 72 (3d Cir. 1994). The jury may make 

reasonable inferences from the evidence presented; the 

evidence need not unequivocally point to the defendant's 

guilt as long as it permits a finding of guilt beyond a 

reasonable doubt. See United States v. Pungitore, 910 F.2d 

1084, 1129 (3d Cir. 1990). Insufficiency of the evidence 

claims, in particular, place a heavy burden on a defendant. 

See United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 

1990). 

II. The Counts of Conviction 

A. Obstruction of Justice 

Count 2 of the indictment charged obstruction of justice 

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

 Whoever . . . corruptly or by threats or force, or by any 

 threatening letter or communication, influences, 

 obstructs, or impedes, or endeavors to influence, 

 obstruct, or impede, the due administration of justice, 

 shall be fined not more than $5,000 or imprisoned not 

 more than five years, or both. 

In order to violate S 1503, a defendant must have notice or 

knowledge of the pendency of some judicial proceeding 

constituting the "administration of justice." See United 

States v. Nelson, 852 F.2d 706, 710 (3d Cir. 1988). The 

District Court ruled that there were two possible judicial 

proceedings that Davis might have obstructed: the grand 

jury investigation into the Giampa Crew and the wiretap 

investigation. Though there is some confusion on this point, 

we presume that the jury would have considered the 

Customs wiretap rather than the later FBI wiretap 

 7 
investigation into the source of the "leak" about Sabol's 

status.1 

The verdict form provided to the jury separated the

"grand jury obstruction" from the "wiretap obstruction" and 

allowed the jury to find Davis guilty or not guilty separately, 

and repeated this for the conspiracy counts. The jury found 

Davis guilty of both "grand jury obstruction" and "wiretap 

obstruction." Therefore, while we conclude that S 1503 does 

not prohibit "wiretap obstruction," thus invalidating Davis's 

conviction therefor, we must also evaluate the sufficiency of 

the evidence of "grand jury obstruction." 

1. Wiretap Obstruction 

As a foundation for this charge, Customs Agent James 

Delia testified that the Giampa Crew wiretaps were reviewed 

every ten days by the district court that authorized them. 

Davis does not contest this, but argues that a wiretap is 

not a "pending judicial proceeding" within the meaning of 

S 1503. This is an issue of first impression in the federal 

courts. We conclude that the wiretap was at bottom an 

element of the Customs investigation and that it could not 

be a "pending judicial proceeding" within the scope of the 

statute. 

Courts have repeatedly held that an investigation 

simpliciter is not enough to trigger S 1503. For example, 

intentionally interfering with the execution of a search 

warrant by warning its target to conceal or dispose of 

evidence does not involve a pending judicial proceeding and 

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

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

agents of the Treasury Department "or some other like 

instrumentality" of the United States does not constitute a 

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

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

_________________________________________________________________ 

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

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

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

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

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

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

"grand jury obstruction" did. 

 8 
591 F.2d 206, 208 (3d Cir. 1979) ("[T]he obstruction of an 

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

similar governmental agency or instrumentality, does not 

constitute a S 1503 violation because such agencies or 

instrumentalities are not judicial arms of the government 

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

court-appointed officers does not constitute a pending 

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

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

investigation conducted by agents of the executive branch, 

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

description of investigations that are insufficient to invoke 

S 1503. 

The government nonetheless argues that a wiretap 

investigation may constitute a judicial proceeding within 

the meaning of S 1503 where it is monitored actively by a 

federal district court, citing United States v. Aguilar, 515 

U.S. 593 (1995), and United States v. Walasek, 527 F.2d 

676 (3d Cir. 1975). However, Aguilar does not support the 

government's claim. Indeed, in that case, the government 

charged the defendant's wiretap-related conduct under a 

separate statutory provision that prohibits revealing the 

existence of a wiretap, 18 U.S.C. S 2232(c); his S 1503 

obstruction charge related to conduct specifically involving 

a grand jury. 

The government's theory is drawn from our caselaw, 

which has heretofore focused on when a grand jury 

investigation progresses to a stage where it can be said to 

be "pending." Describing the level of involvement a grand 

jury must have with an investigation to triggerS 1503, we 

wrote: 

 Appellant would have us adopt a rigid rule that a grand 

 jury proceeding is not "pending" until a grand jury has 

 actually heard testimony or has in some way taken a 

 role in the decision to issue the subpoena. He offers no 

 authority for such a rule, and we are not inclined to 

 adopt it. Appellant is correct in his observation that a 

 grand jury subpoena may become an instrumentality of 

 an investigative agency, without meaningful judicial 

 supervision. Nevertheless, the remedy against potential 

 abuses is not to establish a rule, easily circumvented, 

 9 
 by which some formal act of the grand jury will be 

 required to establish "pendency." The remedy is rather 

 to continue to inquire, in each case, whether the 

 subpoena is issued in furtherance of an actual grand 

 jury investigation, i.e., to secure a presently 

 contemplated presentation of evidence before the grand 

 jury. 

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

added). 

The government seizes upon the phrase "judicial 

supervision" to argue that, because the wiretap was subject 

to judicial supervision, it is sufficiently analogous to a 

grand jury investigation to qualify as a "pending judicial 

proceeding." The flaw in the government's argument is that 

judicial supervision is not the test; the test is whether there 

is a judicial proceeding. Walasek considered the role of the 

grand jury in investigations, and we decline to read one 

phrase in that decision as authorizing a sweeping 

expansion in the concept of "pending judicial proceedings," 

one for which the government has no other support. 

Fundamentally, a wiretap order is an investigative 

method used by the executive branch, not an element of 

the judicial process. See United States v. Giordano, 416 

U.S. 505 (1974) (discussing the history of wiretapping 

regulation). Judicial supervision pursuant to Title III of the 

Omnibus Crime Control and Safe Streets Act of 1968, 18 

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

the judicial branch, but rather ensures that wiretaps-- 

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

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

Cir. 1973). 

We conclude that a wiretap order is more like a search 

warrant than it is like a grand jury and that its pendency 

does not constitute the "administration of justice" within 

the meaning of S 1503. See Brown, 688 F.2d at 598. It 

follows that Davis cannot be convicted of violatingS 1503 

for intentionally interfering with a wiretap. 

2. Grand Jury Obstruction 

A grand jury investigation clearly qualifies as a pending 

judicial proceeding under S 1503. See United States v. 

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

in its written opinion upon Davis's sentencing, found that 

there was a pending grand jury investigation into organized 

crime and the Giampa Crew in particular at the time of 

Davis's acts. However, the trial record is nearly barren of 

any evidence of this fact. The government identifies one 

piece of evidence in support of its contention--the

testimony of Agent Delia, who testified that, before 

obtaining the wiretap order of January 13, 1994, Customs 

subpoenaed subscriber information and toll records for a 

number of customers from NYNEX. But Agent Delia did not 

testify that a grand jury was actually in the process of 

investigating the people whose records were subpoenaed or 

that the subpoena issued in furtherance of a presently 

contemplated presentation of evidence before a grand jury. 

As in many districts in modern times, a grand jury is 

always empaneled in the District of New Jersey, which 

comprises the entire state of New Jersey. For that very 

reason, the mere existence of a grand jury in a district does 

not trigger S 1503; the grand jury must have some 

relationship to the investigation that is obstructed. See 

Nelson, 852 F.2d at 711. Nor is the issuance of a subpoena 

automatically proof of a pending grand jury investigation. 

As we wrote in Nelson: 

 Fed. R. Crim. P. 17(a) provides for issuance of 

 subpoenas "signed and sealed but otherwise blank to a 

 party requesting it, who shall fill in the blanks before 

 it is served." Because these subpoenas are issued 

 without meaningful judicial oversight, the pendency of 

 a grand jury investigation cannot be determined from 

 their face alone. Not every investigation in which grand 

 jury subpoenas are used ripens into a pending grand 

 jury investigation for purposes of 18 U.S.C. S 1503. 

Id. 

Thus, the government must show something more than 

that a grand jury exists in the district and that subpoenas 

have issued in order to prove that a judicial proceeding is 

pending. We have refused to make rigid rules about how 

the connection between an investigation and a grand jury 

must be shown so as to avoid meaningless formality, see 

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

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

testimony that the subpoena was issued in furtherance of 

an ongoing or presently contemplated presentation of 

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

precedent, find Agent Delia's testimony about the subpoena 

sufficient to sustain Davis's conviction. 

There is another fundamental flaw in the government's 

case. A person who lacks knowledge or notice of a pending 

proceeding necessarily lacks the intent to obstruct that 

proceeding. See Aguilar, 515 U.S. at 599; Pettibone v. 

United States, 148 U.S. 197, 206 (1893). The Aguilar Court 

explained that recent decisions of the appellate courts have 

placed certain boundaries on S 1503's apparently broad 

sweep. For example, the defendant's action "must be with 

an intent to influence judicial or grand jury proceedings; it 

is not enough that there be an intent to influence some 

ancillary proceeding, such as an investigation independent 

of the court's or grand jury's authority." Aguilar, 515 U.S. 

at 599 (citing Brown, 688 F.2d at 598)."[I]f the defendant 

lacks knowledge that his actions are likely to affect the 

judicial proceeding, he lacks the requisite intent to 

obstruct." Id. 

The government concedes that there is no record 

evidence that Davis had actual knowledge of a grand jury 

proceeding, but argues that the evidence was sufficient to 

support a conviction on the ground that Davis inferred that 

a grand jury investigation was pending. Davis knew that 

Sabol had been convicted in Georgia on serious drug

charges and was facing a twenty-year prison term. He 

received assurances from a FBI agent that Sabol would 

serve a lengthy sentence. In light of the fact that Davis was 

a police officer, the District Court found that there was a 

sufficient basis to conclude that Davis knew or believed 

that Sabol was only out of prison because he was an

informant or cooperating witness in some federal 

investigation. Indeed, Davis communicated this belief to 

Michael and Vittorio, and, in the District Court's view, the 

jury could take him at his word, even though he later 

claimed that he was just bluffing to get Sabol out of his life. 

 12 
The District Court concluded that Davis's failure to take 

proper police action from December 25, 1993 (when hefirst 

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

1994, justified an inference that Davis knew that Sabol was 

involved in an ongoing investigation. The District Court 

believed that Davis should have reported Sabol and 

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

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

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

District Court held, the jury could have found that Davis 

was willfully blind to the likelihood that Sabol was involved 

in an investigation. Moreover, the jury could have 

concluded that Davis knew that his actions had the natural 

and probable effect of interfering with a federal 

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

he and other members of the Giampa crew would have 

continued to deal with Sabol. 

The District Court's reasoning is sound, but it fails to go 

far enough to show Davis's knowledge of a grand jury 

investigation. There was no evidence that Davis concluded 

that Sabol was involved in a grand jury-based investigation. 

Agent Geer and Davis's superior, Larry Wirsing, both 

testified that a police officer would likely conclude that a 

person in Sabol's situation was or had been an informant. 

Both men formed the impression that Davis had reached 

this conclusion, though nothing explicit was said. But 

informants and investigations exist without grand juries. 

We cannot find in this record a shred of evidence that 

Sabol's status as an informant would have led Davis to 

conclude that Sabol was involved in an investigation related 

to a pending grand jury proceeding. 

_________________________________________________________________ 

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

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

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

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

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

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

with 

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

government would not have any reason to rearrest Sabol for associating 

with Vittorio. 

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

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

evidence of hate crimes. The evidence clearly showed that 

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

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

defendant knew or had notice of the pending grand jury 

proceeding. The government offered two pieces of evidence 

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

defendant that he expected the FBI investigator to return 

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

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

finding that this was an irrelevant misstatement, the court 

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

subpoena, there was no way to infer from this statement 

that he knew that a grand jury proceeding was underway, 

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

government's second piece of evidence was similar to the 

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

the defendant knew that the crimes were under 

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

jury could have inferred that the investigation was by a 

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

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

it clearly distinguishes simple awareness of a federal 

investigation from knowledge of a pending judicial 

proceeding. 

The only relevant case from this circuit involves police 

officers who beat a civilian to death and then took actions 

to cover up their misbehavior. See United States v.

Messerlian, 832 F.2d 778 (3d Cir. 1987). The defendants 

argued that there was no evidence that they could have 

foreseen that federal judicial proceedings were in the offing 

when they committed their obstructive conduct. We found 

that the defendants, ten- and twenty-five-year veterans of 

the New Jersey State Police, could, by reason of their 

positions, be expected to know that federal grand jury 

investigations often follow when an arrestee dies 

suspiciously in police custody. See id. at 794 n.23. By 

contrast, we do not think that a police officer, particularly 

a transit police officer, should ordinarily expect that an 

informant is involved with a grand jury investigation, and 

the government offered no testimony to the contrary. Intent 

 14 
to influence an investigation, which the evidence clearly 

supports, is insufficient to sustain a conviction under 

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

The government's proof in this case is deficient in two 

respects: First, it failed to show that the NYNEX subpoena 

was issued pursuant to a presently contemplated 

presentation of evidence to a grand jury. Second, it failed to 

show that Davis had the requisite knowledge that a grand 

jury investigation, as opposed to an investigation by federal 

agents, was pending. Davis's conviction on this count must 

therefore be reversed. 

B. Conspiracy to Obstruct Justice 

Count 1 of the indictment charged conspiracy to obstruct 

justice in violation of 18 U.S.C. S 371. The sufficiency of the 

evidence in a conspiracy prosecution requires close

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

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

justice, the government must establish that there was an 

agreement whose object was to obstruct justice, that the 

defendant knowingly joined it, and that at least one overt 

act was committed in furtherance of the object of the 

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

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

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

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

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

is in issue here.3 

_________________________________________________________________ 

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

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

surrounding an illegal still. The conspiracy to suppress evidence and 

keep potential witnesses away from any investigating agency began more 

than two years before any judicial proceeding began. The indictment 

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

investigate. We assumed that the substantive offense of obstruction of 

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

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

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

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

proceedings will be instituted can be prosecuted for conspiracy to 

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

 15 
The District Court ruled that the evidence that Davis had 

informed Vittorio, Michael, and Maria of the Customs 

investigation and of Sabol's status as a confidential 

informant was sufficient to establish that he conspired with 

others to obstruct justice. The evidence spins out as 

follows: Michael and Maria had a relationship with Vittorio, 

and Davis first convinced them that Sabol was an 

informant, then got them to arrange a meeting between 

Davis and Vittorio. Davis provided Michael and Vittorio with 

information about Sabol's Georgia conviction, including the 

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

and told Vittorio that Sabol had received a twenty-year 

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

release. He told Vittorio that Sabol was cooperating with the 

government and that the cell phones that Sabol gave to 

Vittorio, McManus, and Giampa were tapped. The taped 

conversations from January 25 to March 2 corroborated 

Vittorio and Michael's testimony. 

It is clear that the parties involved in this intrigue had 

different motives. Vittorio wanted to protect his 

confederates and himself; Davis wanted to hurt Sabol; 

Michael wanted to please Maria by helping her brother with 

his personal problems, and he also wanted to protect his 

childhood friend. Davis contends that this disproves a 

conspiracy. We disagree. If they all agreed to interfere with 

a pending judicial proceeding, they are guilty of conspiracy. 

That is the difference between motive and intent. 

A conspiracy requires agreement between at least two 

people to the illegal object of the conspiracy, though other 

_________________________________________________________________ 

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

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

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

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

investigation. More importantly, however, Perlstein concerned a situation 

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

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

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

Perlstein 

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

the conspirators knew of or anticipated a grand jury investigation. 

 16 
participants need not be indicted. See United States v. 

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

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

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

the record that any of Davis's alleged coconspirators had 

the necessary awareness of a pending or threatened judicial 

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

1980), we reversed a conspiracy conviction because, while 

there was overwhelming evidence that the defendant 

violated the substantive law, there was insufficient evidence 

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

is an essential element of the underlying substantive 

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

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

cannot conspire with himself; at least two conspirators 

must have sufficient knowledge in order for there to be a 

conspiracy. 

Molt's requirement is not met here. The government relied 

on Davis's status as a police officer to argue that he was 

aware of the pendency of a judicial proceeding. We have 

already rejected that conclusion, and none of the other 

alleged coconspirators were police officers. Two actually 

testified: Vittorio and Michael. Both testified for the 

government, though Michael was something of a hostile 

witness, and neither testified about his knowledge of a 

pending or foreseen judicial proceeding. While Vittorio was 

clearly a wrongdoer, and Michael and Maria no doubt knew 

that Davis's actions were not legitimate, we cannotfind any 

evidence that would allow a reasonable jury to conclude 

that they conspired to obstruct a judicial proceeding. Cf. 

Schramm, 75 F.3d at 160 (a defendant could not be 

convicted of conspiracy to commit mail fraud where there 

was no evidence that the defendant knew of the mail fraud, 

though he knew of many other illegal acts by his alleged 

coconspirators). Therefore, Davis's conspiracy conviction 

must also be reversed. 

C. Use of a Telephone in Furtherance of an Unlawful Act 

Counts 5-11 charged Davis with use of a telephone in aid 

of racketeering in violation of 18 U.S.C. S 1952, which 

provides in relevant part that 

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

 commerce, with intent to . . . promote, manage, carry 

 on, or facilitate the promotion, management,

 establishment, or carrying on of any unlawful activity, 

 and thereafter performs or attempts to perform [any of 

 the acts specified commits an offense against the 

 United States]. 

The "unlawful activity" charged is a violation of New York 

Penal Law S 200.25, receiving reward for official 

misconduct: 

 A public servant is guilty of receiving reward for official 

 misconduct in the second degree when he solicits, 

 accepts or agrees to accept any benefit from another 

 person for having violated his duty as a public servant. 

Under New York law, "benefit" is defined to include "any 

gain or advantage to the beneficiary and includes any gain 

or advantage to a third person pursuant to the desire or 

consent of the beneficiary." N.Y. Penal LawS 10.00(17) 

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

law does not require an agreement between the two parties, 

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

violation of duty and a solicitation or acceptance of a 

benefit for the violation. 

The critical issue is whether Davis, a New York police 

officer at the relevant times, solicited a "benefit" within the 

meaning of the statute. The government's theory was that 

any harm to Sabol benefited Davis, whether in the form of 

Sabol's return to prison or Sabol's murder. Davis made a 

phone call to Pelatti's residence on February 18, 1994, that 

suggested that he perceived Sabol's presence as impeding 

his attempt to reconcile with Pelatti, and the government 

argues that his hope of ending Sabol's newfound freedom 

was a sufficient "benefit." 

Although the New York Court of Appeals has not 

construed Penal Law S 200.25, the extant case law suggests 

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

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

defendant, who had authority to deposit city money in 

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

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

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

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

The court concluded that he could not be convicted of that 

crime because there was no showing of any "personal

advantage" to him. 

The Hyde court rejected a prosecution theory similar to 

that proffered in this case, which is that the defendant's 

request for something is proof enough that getting it would 

be a "benefit" to him: 

 The People . . . contend[ ] that the mere fact that Robin, 

 for the Northern Bank, acceded to defendant's request 

 that that bank should make the loan desired by the 

 Carnegie Trust Company, of itself constituted a bribe 

 and was manifestly a personal advantage and thing of 

 value to defendant, and so the court charged as matter 

 of law. It is quite clear that this position is untenable. 

 It is not to be disputed that . . . what is commonly 

 known by the collective word "bribe," is something 

 more than the personal satisfaction arising from the 

 gratification of a wish. There must be something more 

 flowing to the person who asks the favor--something of 

 value to him, not necessarily of pecuniary or intrinsic 

 value, but value in the sense of a personal advantage 

 of some sort. The word "advantage" must be given its 

 commonly accepted and natural meaning of something 

 accruing to the benefit of the person receiving it. 

 . . . . [A bribe] must consist of something real, 

 substantial and of value to the receiver, as

 distinguished from something imaginary, illusive, or 

 amounting to nothing more than the gratification of a 

 wish or hope on his part. 

Id. at 1093 (emphasis added). Hyde is still commonly cited 

in prosecutions under section 200.25 and related laws. 

The most recent relevant case is People v. Feerick, 671 

N.Y.S.2d 13 (App. Div. 1998). The majority sustained 

convictions under section 200.25 where the defendants, 

who were police officers, had committed various abuses of 

authority in their search for a lost police radio. The majority 

concluded that the return of the radio was "a specific, 

personal benefit to these defendants as well as a benefit to 

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

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

and to monitor their activity, causing the officers

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

produced a vigorous dissent, which argued that the radio 

was only tenuously connected to the officers and that the 

enjoyment of its return was an insufficient benefit under 

the statute. 

The government argues that the majority opinion in 

Feerick supports its theory because retrieving the radio 

offered psychic benefits to the officers--the satisfaction of 

getting the radio back. Similarly, it argues, telling Vittorio 

about Sabol offered Davis the psychic benefit of harming 

Sabol. But Feerick did not turn on the defendants' 

nonpecuniary motives for seeking the radio; under the 

statute, a public servant is guilty if he solicits an item with 

de minimis market value but great personal value. The 

question is whether we can find anything sufficiently welldefined here that we might identify as a "benefit."

Other cases emphasize that a "benefit" must be definite 

in some way, although it need not be tangible. In People v. 

Dolan, 576 N.Y.S.2d 901 (App. Div. 1991), the defendant, a 

police officer, was accused of attempted bribery and 

attempted bribe receiving for threatening to stop 

transporting prisoners of a separate police jurisdiction to 

the County Jail unless the Sheriff of the other jurisdiction 

agreed to limit investigations by his department in the 

defendant's jurisdiction. The prosecution argued that the 

"benefit" sought by the defendant was "a lessening of the 

possibility of discovery of alleged drug use by defendant 

and his friends." Id. at 904. The court rejected this theory 

and dismissed the charge. The court found that the benefit 

was not "real, substantial and of value," but was rather 

"imaginary, illusive or amounting to nothing more than the 

gratification of a wish or hope." Id. (citing Hyde). 

The Dolan court also dismissed a charge that the 

defendant received a benefit from agreeing to refrain from 

prosecuting a woman. The alleged benefit was that, in 

return for his forbearance, she would become a confidential 

police informant. The prosecution argued that the"benefit" 

was that the defendant got a personal relationship with the 

 20 
informant so that she would give him information about 

undercover Sheriff's operations relating to drug use by him 

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

be highly speculative and consist only of a remote wish or 

an illusive hope on his part." Id. 

In People v. Esposito, 554 N.Y.S.2d 16 (App. Div. 1990), 

the chief of the Metro North Railroad Police conducted an 

unauthorized criminal record check on a company 

employee, in violation of his duty as a public servant. The 

alleged "benefit" was the utility to his employer of knowing 

relevant information, but the court found that this was too 

ill-defined to fall within the statutory prohibition. Likewise, 

in People v. Cavan, 376 N.Y.S.2d 65 (Sup. Ct. 1975), the 

defendant was charged with bribery when, on his arrest, he 

offered to assist the police in catching drug dealers in 

return for leniency. The court held that 

 the benefit must not be so remote, abstract, or 

 theoretical as to create speculation as to its ultimate 

 value to the receiver. In the case at bar, it is doubtful 

 if a vague offer to turn State's evidence, without 

 anything further, constitutes such a benefit in the 

 statutory sense. 

Id. at 67. 

In People v. Adams, 382 N.Y.S.2d 879 (County Ct. 1976), 

the defendant, a legislator, was part of a committee 

studying off-track betting. He prevailed upon an employee 

of a firm that had made a formal presentation to the 

committee to ghost-write a final report for the committee. 

The court found that the defendant had not received a 

"benefit" within the meaning of the penal law: 

 "The gist of the crime of bribery is the wrong done to 

 the people by corruption in the public service." Thus, 

 the public servant who agrees to and does manipulate 

 events, not to benefit himself or a third party, but for 

 the personal satisfaction of commanding obedience, is 

 said to receive no bribe. 

Id. at 881 (citations omitted) (emphasis added). The court 

found that the supposed "benefit" was too nebulous to 

support a charge of receiving reward for official misconduct, 

 21 
in that little credit would redound to him for the 

committee's report and there was no evidence that he 

benefited in any "direct material way." 

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

within section 200.23. The government's theory would 

convert all violations of duty that involve at least one other 

person into violations of this statute. Under that approach, 

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

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

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

declines to arrest someone when an arrest should occur, 

that person receives a benefit, and the benefit would be 

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

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

particular relationship between the officer and the person 

benefited, so long as the benefit accrues pursuant to the 

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

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

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

satisfaction from doing so. 

Where the alleged benefit consists of an intangible course 

of conduct, we think that it must be sufficiently specific to 

constitute a clearly defined and direct advantage to the 

defendant, or to a third party in whom he has some 

interest. Compare Dolan, 576 N.Y.S.2d at 404 (alleged 

benefit of lessened possibility of discovery of the defendant's 

other misconduct was insufficiently specific to fall within 

the statute), with People v. Hochberg, 404 N.Y.S.2d 161, 

167 (App. Div. 1978) (a person's agreement not to run 

against the defendant in a primary election was a 

sufficiently direct benefit to constitute "personal advantage" 

to the defendant). It was the government's own theory that 

Davis wanted Sabol out of his life and did not care how, 

whether the mechanism was: (1) that Sabol's cooperation 

failed to produce results so that Sabol would return to 

prison; (2) that Sabol would be charged with violating his 

parole; or (3) that Sabol would be killed. Davis had no 

specific plan. We recognize that New York does not require 

a tangible benefit in order to find a violation of section 

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

is so intangible and speculative as to fall outside the reach 

of the statute. 

 22 
The government has, however, a narrower theory, which 

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

a gun in return for his damning information. Although the 

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

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

the gun and the violation of duty is far more attenuated 

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

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

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

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

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

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

attempted murder, and it remained entirely hypothetical. 

Moreover, Davis's request for a gun was not necessarily 

tied to his violation of duty, nor was it in any way tied to 

his status as a police officer. If Vittorio had already known 

about Sabol's status, Davis could just as readily have asked 

for the gun, and Vittorio would have had as much reason 

to give it to him to "take care" of Sabol. In this instance, 

Davis acted like an obsessed person, not a corrupt police 

officer. Thus, we conclude that Davis's convictions for 

violating S 1952 must be set aside. 

D. Witness Tampering 

1. Introduction 

Davis was also charged with witness tampering in 

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

 Whoever knowingly uses intimidation or physical force, 

 threatens, or corruptly persuades another person, or 

 attempts to do so, or engages in misleading conduct 

 toward another person, with intent to . . . hinder, 

 delay, or prevent the communication to a law

 enforcement officer or judge of the United States of 

 information relating to the commission or possible 

 commission of a Federal offense . . . shall be fined 

 under this title or imprisoned not more than ten years, 

 or both. 

Unlike S 1503, S 1512 does not require an official 

proceeding to be pending or imminent at the time of the 

offense. A reasonable belief that the named witness will 

 23 
communicate information to a law enforcement officer is 

enough to create liability under the statute. See United 

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

discussed above, a reasonable jury clearly could have found 

that Davis believed that Sabol was communicating with the 

authorities. 

To be criminally liable, the defendant must know that his 

conduct has the natural and probable effect of interfering 

with the witness's communication, whether or not it

succeeds. See United States v. Kenny, 973 F.2d 339, 344 

(4th Cir. 1992). Davis indicated that he wanted Vittorio to 

stop dealing with Sabol and warned Vittorio that Sabol was 

"setting him up." He also hoped that Vittorio would kill 

Sabol. The government argues that the natural, foreseeable, 

and probable consequence of Davis's acts was that Sabol 

would be killed or otherwise prevented from gaining and 

conveying information. Although we find the government's 

theory extremely broad, we conclude that Davis's conduct 

in this case falls within the statutory meaning of "corrupt 

persuasion." 

Simply interfering with the flow of information to the 

government is not enough to constitute witness tampering. 

Suppose that Vittorio became suspicious of Sabol on his 

own and stopped talking to him, thus decreasing the

amount of information Sabol could communicate to the 

government. By the government's theory, this would 

apparently constitute witness tampering by Vittorio. Or 

hypothesize that Michael tried to dissuade Vittorio from his 

criminal ways, using as one of his arguments the 

proposition that the government had infiltrated the Giampa 

Crew. By the government's theory, this would apparently 

constitute witness tampering by Michael. Indeed, a lawyer's 

instruction to a client not to speak to potential government 

witnesses, including government investigators, would also 

apparently constitute witness tampering by this theory, 

except that the statute excludes lawful, bona fide legal 

services in connection with or anticipation of an official 

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

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

if he or she advised a defendant to keep silent when 

approached by potential witnesses. 

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

basis in the statute. Because there is no allegation that 

Davis used misleading conduct,4 intimidation, physical 

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

engaged in "corrupt persuasion" with the relevant intent. 

2. Corrupt Persuasion 

The Ninth Circuit has held that lying to a witness is not 

corrupt persuasion, though appealing to a witness to avoid 

testifying truthfully in order to protect one's career would 

be. See United States v. Aguilar, 21 F.3d 1475, 1485-86 

(9th Cir. 1994) (en banc), rev'd on other grounds, 515 U.S. 

593 (1995). United States v. Poindexter, 951 F.2d 369 (D.C. 

Cir. 1991), gives more guidance on the meaning of corrupt 

persuasion. Poindexter interpreted 18 U.S.C.S 1505, which 

prohibits obstructing proceedings before congressional 

committees. Poindexter was charged with obstruction of 

justice for lying to Congress, which the government argued 

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

could not be extended to encompass simple lying to a 

congressional committee. 

As the court explained, "corruptly" has two possible 

meanings, transitive and intransitive. The transitive 

meaning would involve persuading another by means of 

corruption or bribery, while the intransitive would involve 

persuading "wickedly" or "immorally," that is, with a bad 

motive. Poindexter endorsed the transitive meaning in order 

to avoid what it perceived as a potentially unconstitutional 

vagueness, and also because the other terms in the statute 

were transitive ("by threats," "by force," etc.). It further 

found that "corrupt persuasion" could not be cabined 

simply by saying that the term covered "influencing another 

to act `immorally' or `improperly,' " as that simply 

substitutes one indefinite term for another. 

_________________________________________________________________ 

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

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

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

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

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

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

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

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

 25 
The Poindexter court determined that corrupt persuasion 

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

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

statutory prohibition of corrupt persuasion was aimed at a 

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

influences another person (through bribery or otherwise) to 

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

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

witness to violate her legal duty to testify truthfully 

constituted corrupt persuasion under S 1512(b)). 

We approved of Poindexter's reasoning in theS 1512 

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

1997). Farrell was convicted of witness tampering for 

attempting to dissuade a coconspirator from providing 

information to federal investigators about Farrell's 

involvement in a conspiracy. We reversed his conviction: 

 Without any definitional assistance, we find the phrase 

 "corruptly persuades" to be ambiguous. We agree with 

 Farrell that the phrase cannot mean simply "persuades 

 with the intent to hinder communication to law 

 enforcement" because such an interpretation would 

 render the word "corruptly" meaningless. 

Farrell, 126 F.3d at 487. While we were confident that 

bribing someone to withhold information or persuading 

someone to provide false information would be corrupt 

persuasion, we declined to define the term more abstractly. 

See id. at 488. Farrell concluded that the statute did not 

cover a noncoercive attempt to persuade a coconspirator 

who had a Fifth Amendment right not to disclose 

information about the conspiracy to refrain, in accordance 

with that right, from volunteering information to 

investigators. See id. at 488.5 

The government argues that Farrell is distinguishable 

because the defendant in that case was acting in 

furtherance of his own interest in avoiding a coconspirator's 

disclosure of a crime, while here Davis was a malicious 

_________________________________________________________________ 

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

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

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

 26 
interloper. While we agree that Davis may have violated 

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

purpose to expose an informant is insufficient under Farrell 

to justify a conviction: 

 We read the inclusion of "corruptly" in S 1512(b) as 

 necessarily implying that an individual can "persuade" 

 another not to disclose information to a law

 enforcement official with the intent of hindering an 

 investigation without violating the statute, i.e., without 

 doing so "corruptly." Thus, more culpability is required 

 for a statutory violation than that involved in the act of 

 attempting to discourage disclosure in order to hinder 

 an investigation. 

Id. at 489. 

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

there was testimony that he suggested that Vittorio should 

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

could kill Sabol. By suggesting that Vittorio should "do 

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

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

Sabol's death. This conduct would constitute "corrupt 

persuasion" under the statute. The fact that Davis never 

had direct contact with Sabol is irrelevant, because all that 

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

persuade "another person" with the requisite intent. That 

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

testimony that he was never persuaded to kill Sabol does 

not exonerate Davis. If Davis intended to corruptly

persuade, his attempt violates the statute.6 

_________________________________________________________________ 

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

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

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

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

and Poindexter suggest that this instruction provides insufficient 

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

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

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

and includes inducements to violence. 

 27 
III. The Intoxication Instruction 

Having decided that there is sufficient evidence for a 

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

Davis is entitled to a new trial because the District Court 

refused to provide an intoxication instruction concerning 

his specific intent. A defendant is entitled to an instruction 

on his theory of the case where the record contains

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

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

in refusing a requested instruction only if the omitted 

instruction is correct, is not substantially covered by other 

instructions, and is so important that its omission

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

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

preserved the issue for appellate review, and then evaluate 

the merits of his request. 

A. The Request for Instruction 

When Davis's trial counsel initially raised the issue of an 

intoxication charge, the District Court was uncertain that 

such an instruction was required and requested briefing on 

the issue. The record reveals the following exchange on 

March 20, 1998, a Friday: 

 Mr. Cascione: I made an additional submission which 

 I gave Mr. Sierra, so if he wishes to cover it during his 

 opportunity for an intoxication charge because I saw 

 some reason for it as the proof came out. 

 I will submit it to the Court so that the Court has it 

 and we'll cover it in our charge conference.

 The Court: You better give me law on that. 

 Mr. Cascione: That's understood. 

 The Court: I need law on that. I'm not sure I see the 

 basis for an intoxication charge here, but you can 

 address that factually and legally. Give me these briefs 

 Monday morning. 

Over the weekend, however, there was an unexpected 

early spring snowstorm that disrupted much travel in the 

area; we take judicial notice of the snowstorm. See Elise 

Young & Barbara Williams, North Jersey Gets a Taste of 

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

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

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

March 23, 1998, defense counsel stated that the inclement 

weather had disrupted his research, and, when specifically 

asked about the intoxication charge, stated: 

 I have the submission. I was prepared to give the Court 

 citing from Blackmore [sic]. There is an Eighth Circuit 

 case on it that I was not able to obtain yesterday. 

The statement obviously refers to E. Devitt & C. Blackmar, 

Federal Jury Practice and Instructions, the veritable "bible" 

on the subject, which virtually every federal district judge 

has in his or her chambers. 

The Court rejected the intoxication charge because 

defense counsel had not provided enough support for it: 

 I told you I wanted something and you haven't given 

 me anything. The stuff you have given me is not 

 adequate. 

 Now, you've got an intoxication argument, you 

 haven't given me the charge, you haven't given me any 

 law on it. I came in early to handle it. . . . 

 I know the whole idea behind this is for you to 

 "preserve this" and raise it now so you can bring it up 

 on appeal and I have a real serious problem with that, 

 and I'm going to have to address all this in an opinion 

 with regard to this, which means again I'm going to 

 have to be doing your work and I don't think I should 

 have to do your work. 

The District Court never ruled that an intoxication charge 

was not justified by the facts; rather, it apparently rejected 

the charge because of counsel's failure to brief the issue. 

The government's appendix contains defense counsel's 

written request to give an intoxication instruction, along 

with excerpts from Devitt & Blackmar relevant to 

intoxication. The government and the defendant cannot 

agree on whether these papers were in fact submitted to the 

District Court.7 We need not resolve the conflicting 

_________________________________________________________________ 

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

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

 29 
accounts, because we conclude that Davis's counsel 

brought the intoxication issue to the Court's attention with 

sufficient clarity to preserve the issue, even assuming that 

he did not provide the Court with any written submission. 

The government argues that Davis waived the issue by 

failing to brief it to the District Court. Waiver, however, is 

an intentional relinquishment of a known right. See United 

States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995). 

Davis's counsel did not relinquish his request for an 

intoxication instruction, though he failed to supply the 

court with precedent in support of his request. We are 

persuaded that the appropriate inquiry is whether defense 

counsel's acts preserved the issue for appellate review. See 

United States v. Russell, 134 F.3d 171, 178-79 (3d Cir. 

1998). 

In general, if an instruction is timely requested, is 

supported by the evidence, and correctly states the law, it 

should be given. See, e.g., United States v. Jerde, 841 F.2d 

818 (8th Cir. 1988); United States v. Hicks, 748 F.2d 854 

(4th Cir. 1984). However, counsel is required to draw the 

court's attention to a specific instruction, or to a problem 

with an instruction, in order to put the court on notice so 

that a possible error may be corrected before the jury 

begins to deliberate. See United States v. Scarpa, 913 F.2d 

993, 1020 (2d Cir. 1990); United States v. Kaplan, 832 F.2d 

676, 682 (1st Cir. 1987). As we have explained: 

 The specificity requirement imposes a strict standard 

 on defense counsel, but it is not a mere formalism. 

_________________________________________________________________ 

counsel's Devitt and Blackmar excerpts referred to materials submitted 

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

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

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

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

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

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

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

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

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

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

we 

have found it unnecessary for him to do so. 

 30 
 Without a clearly articulated objection, a trial judge is 

 not apprised sufficiently of the contested issue and the 

 need to cure a potential error to avoid a new trial. 

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

1993). 

At the same time, the requirement that counsel make

specific requests is not designed to be a trap. Our cases 

suggest that a request for an instruction need only be 

sufficiently clear to enable the trial judge to fairly evaluate 

it. In United States v. Werme, 939 F.2d 108 (3d Cir. 1991), 

for example, one of the government's witnesses had pled 

guilty to receiving the very bribe for which the defendants 

were on trial for giving. We held that the following 

statements constituted a sufficient request for a limiting 

instruction against using the guilty plea as evidence of the 

defendant's guilt: 

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

 entitled to an instruction at a later time as far as the 

 weight that should be given that. . . . The fact that he 

 entered a plea to a bribery transaction involving $3,000 

 cannot be used to infer that we were guilty of paying 

 the bribe. 

Id. at 114. We note that counsel in Werme did not cite any 

precedent to justify his request. Werme nonetheless found 

that counsel had clearly taken issue with the offered 

evidence and requested a curative instruction. See id. at 

115; see also Russell, 134 F.3d at 178-79 & n.4 (the 

purpose of federal rules governing jury instructions is to 

give a trial court "notice of potential error" and "the 

underlying basis for the objection" rather than to force 

parties to follow formal or technical requirements); United 

States v. Kwong, 14 F.3d 189, 195 (2d Cir. 1994) ("While 

the objection could certainly have been more focussed, we 

find that it was sufficient to alert the trial court and the 

government to the serious Braxton violation they were 

about to commit."). 

The events in this case raise the question of the proper 

allocation of responsibility between lawyer and judge. A 

judge should require counsel to participate in the process 

of crafting instructions. However, the issue here is not 

 31 
arcane. Indeed, not only is the appropriate instruction set 

forth in Devitt & Blackmar, an instantly available source for 

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

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

when a defendant's intoxication prevented him from 

possessing the mental state necessary to commit the crime 

with which he is charged. 

On a garden-variety issue such as intoxication, where an 

adequate instruction is available in a standard charge 

book, the trial court cannot leave everything to the lawyers. 

The judge has an immanent obligation to research the law 

and craft an appropriate charge. This obligation cannot be 

avoided by requiring the lawyers to file legal memoranda on 

a pedestrian issue and then considering them not to have 

preserved the issue if they do not. If the requested 

instruction were complex and involved subtle questions of 

law, the situation would be different and the lawyers would 

have the laboring oar, but in this case we are unwilling to 

deem the request unpreserved merely because defense

counsel did not present the Court with a copy of the Devitt 

& Blackmar charge. 

There is a dispute, discussed infra, as to whether the 

record supported the request for an intoxication 

instruction. That is certainly a basis for requiring 

memoranda. However, there was a snowstorm that 

interfered with counsel's ability to present material to the 

District Court. Moreover, that aspect of the matter could 

have been argued on the basis of the record, which was 

fresh in everyone's mind. We do not believe that criminal 

defense counsel who are immersed in trying a complex case 

should be deemed to have failed to preserve an issue of this 

sort for neglecting to produce memoranda over a weekend, 

even without a snowstorm. While far from perfect, defense 

counsel's request was straightforward and required 

consideration on its merits. In these circumstances, we 

conclude that Davis's counsel properly preserved the issue 

for our review by making his request for an intoxication 

instruction clearly and specifically, even though he failed to 

provide precedent in support of the proposed instruction. 

Cf. Russell, 134 F.3d at 178 n.4 (adopting a"flexible, 

common-sense interpretation" of the rules for preserving 

objections to proposed instructions). 

 32 
B. Was the Instruction Justified? 

All of the charged crimes were specific intent crimes, and 

intoxication can negate specific intent. See United States v. 

Williams, 892 F.2d 296, 303 (3d Cir. 1989). Davis argues 

that he was drunk at the relevant times--his January 25 

and March 2 meetings with Vittorio--and indeed all 

witnesses agree that he was drinking heavily on those 

dates. 

Michael testified that, immediately before Davis saw 

Vittorio on January 25, Davis was "ossified . .. . [d]runk 

beyond drunk, slurring, he walked in with two bottles of 

wine." Michael's testimony indicated that Davis was drunk 

and slurring throughout the part of the conversation that 

he witnessed. On his part, Vittorio testified that when he 

first saw Davis on January 25, "he had some jeans on with 

no shirt and he seemed a little disheveled. He seemed very 

paranoid." Vittorio and Davis then went to a bar, Jester's 

Pub in Yonkers, to continue the conversation away from 

Maria and the Lanteris' baby, and it was at the bar that 

Davis suggested that Vittorio "do something about" Sabol 

and that Vittorio should get Davis a gun. Vittorio testified, 

however, that Davis did not seem drunk to him. Davis 

himself testified that he was drinking before he called 

Michael and that he brought bottles of wine to the Lanteris' 

apartment. He described himself as drunk throughout the 

conversation with Vittorio, "rambling," and using "what was 

left of my brain." 

Vittorio testified that the March 2 meeting was similar. 

They went to Jester's Pub, where Davis again asked for a 

gun. Davis had more than one drink (vodka and lime)

during the conversation and Vittorio testified that he 

"already had a few drinks in him before he met me. . . . He 

wasn't staggering, because I know he does drink a lot so he 

probably can handle a few drinks. He was a little buzzed, 

definitely by the time I left by the way he was driving." After 

the discussion, Davis drove Vittorio home, and Vittorio 

testified that "he had a few drinks and he was all over the 

road and I was kind of concerned about him. . . . I

remember calling [Michael], telling him that Vinnie [Davis] 

was really drunk and I was worried that he might crash 

and kill himself or something . . . ." Finally, Vittorio stated 

 33 
that "Vinnie was very drunk" at the end of their 

conversation. Davis likewise described himself as 

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

In order to justify an intoxication instruction, most 

courts have held that a defendant needs more than 

evidence of intoxication. He also needs some evidence of 

interference with his ability to form the relevant intent. See, 

e.g., United States v. Nacotee, 159 F.3d 1073, 1076 (7th 

Cir. 1998); United States v. Washington, 819 F.2d 221, 225 

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

Carmona, supra, however, we apparently set forth a 

different rule, as we found an intoxication instruction 

required in a felony murder case when the only evidence of 

intoxication was that the defendant had a large amount to 

drink. 

The government argues that our Carmona holding was 

dicta because we reversed the defendant's conviction on the 

alternate ground that the jury instructions failed to define 

robbery as a specific intent crime. However, we specifically 

found the jury instructions defective in that they failed to 

explain the materiality of the intoxication evidence. 

Furthermore, the errors in the intoxication charge and the 

robbery charge were interrelated, because they both

required the jury to be informed about specific intent. We 

rejected the government's claim that, because there was 

evidence only of intoxication and not of interference with 

the defendant's thinking, no intoxication instruction was 

required. See Carmona, 422 F.2d at 99 n.6. We reversed 

because of the "errors in the charge to the jury." Id. at 101. 

It may be that our rule is not substantially different than 

that of other circuits, in that it is often difficult to 

determine what might qualify as evidence of interference 

with ability to form intent. Carmona endorses the 

conclusion, justified by much human experience, that 

heavy drinking may interfere with a person's ability to form 

a specific intent. The facts in Carmona--in which the 

defendant was drinking heavily in a bar, left for a few 

minutes, and then returned to rob it--suggested that the 

crime could have occurred without the defendant forming a 

specific intent to rob. 

 34 
At all events, in Carmona, the evidence justifying the 

instruction was weaker than it is here, because the only 

testimony in Carmona was that the defendant was drinking, 

and the witnesses refused to say that he behaved in a 

drunken manner. By contrast, Michael testified that Davis 

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

was drunk and paranoid at their first meeting on January 

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

driving on March 2, 1994, immediately after their second 

meeting, that he called Michael to express his concern. 

While the government notes that a jury could conclude that 

Davis was not drunk at the beginning of the March 2

conversation, there was also evidence from which a jury 

could conclude that Davis was significantly affected by 

alcohol at the time of the critical statements. 

The government argues that there was no need for an

instruction because Davis's drinking clearly did not 

interfere with his ability to form the specific intent to 

commit the charged crimes. It maintains that Davis's 

scheme evolved over some period of time, and that he 

committed his crimes over many weeks. Despite his 

drunkenness, Davis initiated meetings with Vittorio in order 

to explain to him why he should not trust Sabol. While 

drunk, Davis told Vittorio that Sabol was a "rat," thus 

evidencing that his soused mind retained this crucial fact 

and that he knew that telling Vittorio would further his 

objective. 

The evidence plainly showed that Davis had a fairly

complex plan to eliminate Sabol from his (Davis's) life. Yet 

Davis's plan to eliminate Sabol from his life did not, in the 

main, involve witness tampering; the witness tampering 

was only a small part of the plan, which was in other 

respects not unlawful. As we have explained, an intent to 

expose a person as an informant, while reprehensible, is 

insufficient to constitute "corrupt persuasion" under the 

statute. Thus, Davis's implacable hatred for Sabol and his 

consistent intent, held drunk and sober, to expose Sabol as 

a "rat" was insufficient to make him guilty of witness 

tampering. 

To violate the statute, Davis had to intend to corruptly 

persuade. The two instances of corrupt persuasion, on 

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

suggesting that Vittorio harm Sabol--did not permeate his 

discussions with Vittorio, and a jury could have believed 

that Davis blurted them out drunkenly without intending 

that his requests should be acted upon. Unlike his hatred 

for Sabol, his acts of corrupt persuasion were not so 

extensive as to make the intoxication defense implausible. 

A jury could also find that Davis possessed the requisite 

intent despite his drinking. But, to uphold Davis's

conviction, we would have to find that the missing 

instruction was harmless error--that "it is highly probable 

that the error did not contribute to the judgment." Murray 

v. United of Omaha Life Ins. Co., 145 F.3d 143, 156 (3d Cir. 

1998). We cannot say that the error was harmless on this 

record. See also United States v. Logan, 717 F.2d 84, 92 (3d 

Cir. 1983) (reversing for plain error where the trial judge 

had notice of the defense request for an instruction and the 

evidence showed that the instruction was critical to the 

defense's theory). Therefore, we will reverse Davis's 

conviction for witness tampering and remand for a new 

trial. 

IV. Evidentiary Issues 

Davis claims that the District Court abused its discretion 

in admitting testimony that he had been found guilty by the 

police department of the same acts for which he was on 

trial, and also abused its discretion in admitting evidence of 

other, unrelated misconduct. He contends that this 

evidence's prejudicial effect outweighed its probative value 

in contravention of Rule 403. Because we are remanding 

the witness tampering charges for retrial, we will evaluate 

the challenged evidentiary rulings. We will only disturb a 

district court's decision on admissibility for abuse of 

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

(3d Cir. 1989). 

The District Court allowed the prosecution to question 

Davis about his departmental conviction because Davis had 

testified about why he was dismissed from the police 

department on direct examination. He had testified that he 

was dismissed because Vittorio falsely claimed--in a 

 36 
conversation with Michael that was recorded as part of the 

federal investigation and subsequently provided to NYPD 

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

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

a lie.) 

The prosecution sought to show that Davis was being

less than fully truthful about the reasons for his discharge. 

The prosecutor led Davis through a fairly lengthy recitation 

of the non-firearm-related departmental charges against 

him, which largely tracked those before the jury. 8 The court 

ruled that the questions were appropriate to challenge 

Davis's credibility, and instructed the jury to consider them 

only for impeachment purposes at the time of crossexamination. 

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 crossexamination was more prejudicial than ordinary crossexamination about a defendant's truthfulness with respect 

to collateral matters. 

The government argues, however, that Davis "opened the 

door" to the challenged questions by testifying on direct 

examination that Vittorio's falsehood got him fired. We 

usually use that phrase in reference to a specific doctrine, 

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

introduced inadmissible evidence that may create a false 

_________________________________________________________________ 

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

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

agents who had investigated the "leak." 

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

government's witness, as the government apparently conceded that 

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

and merely sought to show that there were additional reasons justifying 

Davis's discharge. 

 37 
impression, an opposing party may thereafter introduce 

otherwise inadmissible evidence to rebut or explain the 

prior evidence. But the government does not argue that 

Davis's direct testimony was inadmissible or explain why it 

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

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

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

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

The government may find more solace in the related 

principle of completeness, which states that when a witness 

testifies to part of a conversation, statement, transaction, or 

occurrence, the opposing party may elicit testimony on the 

whole thereof, to the extent that it relates to the same 

subject matter and concerns the specific matter opened up. 

See id. at 188; United States v. Womochil, 778 F.2d 1311 

(8th Cir. 1985) (allowing the government to introduce 

otherwise inadmissible hearsay to rebut a false impression 

caused by defense counsel's elicitation of only part of the 

hearsay). However, it is still unclear why the facts behind 

Davis's termination were relevant to the government's case, 

no matter how incomplete Davis's explanation was. 

At all events, the issue before us is whether the line of 

questioning was properly allowed to challenge Davis's 

credibility. We conclude that the District Court did not 

abuse its discretion in ruling that the prosecutor could ask 

Davis whether there were other reasons for his termination 

in order to show that Davis was unwilling to tell the full 

truth. See United States v. Copelin, 996 F.2d 379, 383 (D.C. 

Cir. 1993) (noting that the government may, when 

appropriate, explore a defendant's testimony on crossexamination in order to impeach him). Given that the jury 

was correctly instructed to consider this testimony only for 

impeachment purposes, the District Court did not abuse its 

discretion in permitting this line of questioning. 

The other challenged testimony relates to Davis's prior 

bad acts. The prosecutor first questioned Davis about a 

forty-four-day suspension that he had received for 

misappropriating departmental gasoline for use in his 

personal vehicle and putting a false name in a gas log. 

Second, he asked Davis about an incident in which Davis 

was found to have taken a subway pass away from a young 

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

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

found the ripped-up pass and Internal Affairs determined 

that Davis had lied. Third, the prosecutor asked Davis 

about an incident in 1985 in which Davis was charged with 

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

claimed that Davis yelled at her, that she responded 

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

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

prosecutor's questions, Davis gave exculpatory accounts of 

his acts in those three instances. 

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

crimes or wrongs is inadmissible to prove personal 

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

purposes, including motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of 

mistake or accident. He argues that credibility is not a 

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

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

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

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

untruthfulness. Rule 608(b) applies because the 

government did not introduce extrinsic evidence about 

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

Inquiry into the first two incidents was clearly proper, 

because they went to Davis's truthfulness. See Deary v. 

City of Gloucester, 9 F.3d 191 (1st Cir. 1993) (questions 

about an incident in which a police officer-witness had 

been disciplined for untruthfulness were appropriate under 

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

prostitute, does not appear to be probative of truthfulness 

and therefore it should not have been permitted on crossexamination, unless the government explains to the District 

_________________________________________________________________ 

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

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

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

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

(allowing questions about other acts of molestation to challenge the 

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

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

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

 39 
Court why it was probative of credibility rather than of a 

tendency to do bad acts. 

V. Conclusion 

We will reverse Davis's convictions for obstruction of 

justice, conspiracy to obstruct justice, and use of a 

telephone in aid of racketeering for insufficiency of the 

evidence. Because we conclude that Davis was entitled to 

an intoxication instruction, we will vacate his conviction on 

two counts of witness tampering and remand those counts 

to the District Court for further proceedings consistent with 

this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 40