183 F.3d 231 (3rd Cir. 1999), 98-6251, United States v Davis

Docket Nº:98-6251
Citation:183 F.3d 231
Case Date:July 19, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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183 F.3d 231 (3rd Cir. 1999)




No. 98-6251

United States Court of Appeals, Third Circuit

July 19, 1999

Argued: May 19, 1999

As Amended July 26, 1999

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.

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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

Before: BECKER, Chief Judge, RENDELL, and ROSENN, Circuit Judges.


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.

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 her fingers. 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

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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 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 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

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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.

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...

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