U.S. v. Lemoure

• Citation: 474 F.3d 37
• Decision Date: 29 January 2007
• Docket Number: No. 05-1377.,No. 05-1440.,05-1377.,05-1440.
• Parties: UNITED STATES of America, Appellee, v. Joseph A. LeMOURE, Defendant, Appellant. United States of America, Appellee, v. Joseph F. Polito, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

474 F.3d 37

UNITED STATES of America, Appellee, v. Joseph A. LeMOURE, Defendant, Appellant.

United States of America, Appellee, v. Joseph F. Polito, Defendant, Appellant.

No. 05-1377.

No. 05-1440.

United States Court of Appeals, First Circuit.

Heard November 7, 2006.

Decided January 29, 2007.

COPYRIGHT MATERIAL OMITTED

James H. Budreau with whom Gerald Phelps was on brief for appellant Joseph A. LeMoure.

Robert A. George and Robert A. George & Associates, P.C. on brief for appellant Joseph F. Polito.

Nathaniel S. Pollock, Civil Rights Division, Department of Justice, with whom Jessica Dunsay Silver, Civil Rights Division, Department of Justice, Wan J. Kim, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and S. Theodore Merritt, Assistant United States Attorney, were on consolidated brief for appellee.

Before BOUDIN, Chief Judge, SELYA and LYNCH, Circuit Judges.

BOUDIN, Chief Judge.

Before us are appeals by two Boston police officers, Joseph LeMoure and Joseph Polito, from convictions for a set of related crimes based on attempts to derail investigations into LeMoure's beating of a civilian. The background events are readily summarized, taking a balanced view of the facts consistent with record support.

Early on June 24, 2000, LeMoure pursued and pulled over a car driven by Stephen Duong and accused a passenger — Peter Fratus — of making an insulting gesture directed to LeMoure. LeMoure dragged Fratus from the car, threw him to the ground, punched him and kneed him in the head (whether LeMoure also hit him in the head with a flashlight was disputed at trial). Fratus thereafter filed a complaint with the Boston Police Department, which was investigated by the Department's Internal Affairs Division ("IAD").

In early 2001, Polito — a friend and subordinate of LeMoure's — approached his close friends Dante Tordiglione and Biagio DeLuca and asked them to give false statements to the IAD supporting LeMoure. When they agreed, Polito instructed them concerning the content of those statements. LeMoure asked his close friend Joseph Weddleton to help him secure a "witness" to the incident. Weddleton approached Ralph DeRota, a mutual friend who lived near the location of the incident, to request that he give a false statement to the IAD.

Despite the statements given by Tordiglione, DeLuca, and DeRota, LeMoure was suspended. Fratus then filed a civil suit against LeMoure. In the summer of 2002, prior to a deposition in the civil case, Weddleton met with DeRota at LeMoure's suggestion to refresh DeRota's memory of his false IAD testimony, which DeRota then repeated in the deposition. When DeLuca and Tordiglione hesitated to lie at their own depositions, LeMoure and Polito pressed them to stand fast. Polito provided DeLuca and Tordiglione with copies of their false statements to the IAD in order to prepare them for their depositions. LeMoure also offered to pay Tordiglione $10,000 for his trouble.

DeLuca repeated his false IAD testimony in his deposition; Tordiglione claimed not to remember the incident, but stated that his IAD testimony was true and based on his memory. LeMoure, who was also deposed, testified that he did not strike Fratus or pull him out of the car, and that he had not met DeRota, DeLuca, or Tordiglione prior to their coming forward as witnesses. The civil suit settled, but a grand jury investigation of the incident had begun.

When DeLuca was subpoenaed by the grand jury, LeMoure urged him to stick with his story, and Polito gave him $7,000 for his attorney's fees, stating that the money came from LeMoure. Polito also met with Tordiglione and DeLuca concerning DeLuca's subpoena; in response to Tordiglione's expression of concern, Polito urged the two not to waver. In the end, Tordiglione and DeRota testified truthfully to the grand jury in exchange for immunity, and DeLuca did so in exchange for a plea agreement including a government recommendation of probation. In July 2003, Polito and LeMoure were indicted for a succession of offenses relating to their obstructive conduct.

After a jury trial, Polito and LeMoure were convicted on the counts listed in the margin, including conspiracy, witness tampering, perjury and subornation, and obstruction of justice.¹ Thereafter, they were sentenced to terms of 36 and 48 months, respectively. They now appeal; most of the claims raise issues of law which we review de novo, United States v. Coplin, 463 F.3d 96, 100 (1st Cir.2006); issues of fact and judgment calls are reviewed with more deference. Id.

We begin with Polito's arguments, starting with his claim that the district court should have dismissed the obstruction of justice counts (Counts Nine and Ten) because section 1503, 18 U.S.C. § 1503, does not embrace witness tampering. He points out that Congress in 1982 amended section 1503 to eliminate any explicit reference to "witnesses" and enacted in its place the witness tampering statute, 18 U.S.C. § 1512. Victim and Witness Protection Act, Pub.L. No. 97-291 (1982).

The government responds that although section 1503 was amended to remove any explicit reference to witnesses, its omnibus "due administration of justice" clause continues to cover witness tampering. Pertinently, section 1503 makes it unlawful to

corruptly . . . endeavor[] to influence . . . any grand or petit juror, or officer in or of any court of the United States . . . or corruptly . . . influence[], obstruct[], or impede[], or endeavor[] to influence, obstruct, or impede, the due administration of justice.

Section 1512(b)(1) focuses on witnesses (as well as victims and informants), and makes it unlawful to:

knowingly use[] intimidation, threaten[], or corruptly persuade[] another person, or attempt[] to do so, or engage[] in misleading conduct toward another person, with intent to — (1) influence, delay, or prevent the testimony of any person in an official proceeding.

Admittedly, Polito is supported by the canon, instructive rather than mandatory, that a specific treatment prevails over a more general provision, United States v. Lara, 181 F.3d 183, 198 (1st Cir.), cert. denied, 528 U.S. 979, 120 S.Ct. 432, 145 L.Ed.2d 338 (1999); the canon has added force where, as here, the term "witness" was deleted from the broader statute at the same time the new, more specific statute was adopted. The Second Circuit has taken this restrictive view, but the other circuits that have spoken on this issue are all opposed,² and with good reason.

Section 1503 was enacted with two objectives: to protect witnesses, jurors, and court officers, and to "prevent a miscarriage of Justice by corrupt methods." United States v. Lester, 749 F.2d 1288, 1292 (9th Cir.1984). The term "witness" was indeed deleted in 1982 from the first clause of section 1503; but Congress left intact the omnibus clause forbidding efforts to obstruct the due administration of justice, which had previously been read by courts to encompass the corrupt persuasion of witnesses.³

Further, when section 1512 was initially enacted in 1982, it dealt only with the use or threat of force against a witness; the ban on corrupt persuasion was added only later in 1988. Anti-Drug Abuse Act of 1988, Pub.L. 100-690, § 7029(c) (1988). It is improbable that, in 1982, Congress meant to adopt (in section 1512) a specific ban against forcible intimidation while impliedly narrowing (in section 1503) the omnibus clause so as to decriminalize corrupt but non-forcible interference with witnesses.

Thus, over and above the general presumption against repeals merely by implication, United States v. United Cont'l Tuna Corp., 425 U.S. 164, 168, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976), this implied repeal would mean that Congress had meant in 1982 to reduce the protection afforded against soft witness tampering at the very time that it was trying to expand protection of witnesses. Yet the statute's purpose was "to enhance and protect the necessary role of . . . witnesses in the criminal justice process . . . ." Victim and Witness Protection Act of 1982, Pub.L. 97-291, § 2(b)(1)-(2).

Although we reach this result without any reliance on post-1982 legislative history, it completes the story to note Senator Biden's statement in 1988 when Congress amended section 1512 to cover non-coercive witness tampering. In reporting the bill out of committee, Senator Biden explained the amendment as

intended . . . merely to include in section 1512 the same protection of witnesses from non-coercive influence that was (and is) found in section 1503. It would permit prosecution of such conduct in the Second Circuit, where it is not now permitted, and would allow such prosecutions in other circuits to be brought under section 1512 rather than under the catch-all provision of section 1503.

134 Cong. Rec. S17,369 (1988) (statement of Sen. Biden) (emphasis added).

Polito's next argument concerns the phrase "misleading conduct" in the witness tampering statute, section 1512(b)(1). That statute makes unlawful "misleading conduct toward another person" in order "to influence the testimony of any person" and efforts to "corruptly persuade" another person in order to influence his testimony. The evidence easily supported a conviction on this latter theory. But, Polito argues, the jury might have relied instead on the "misleading conduct" phrase, thinking it sufficient that he had merely asked a witness to engage in misleading conduct.

The jury was told (twice) that the defendant had to "engag[e] in misleading conduct" toward another person with the intent to influence, delay or prevent "the testimony of a person" in the proceeding. Moreover, the evidence of corrupt persuasion was overwhelming; it is highly improbable that the jury would instead have convicted on a less salient misleading-the-tribunal theory, even assuming that the instructions did not adequately negate it.

Polito makes two other related attacks on the instructions as to section 1512(b...