U.S. v. Vesich

Decision Date24 January 1984
Docket NumberNo. 83-3199,83-3199
Parties14 Fed. R. Evid. Serv. 1518 UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. VESICH, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Daniel J. Markey, Jr., New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Harry W. McSherry, Ronald A. Fonseca, Lance M. Africk, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Anthony J. Vesich, Jr. appeals from a judgment of conviction for corruptly endeavoring to influence, obstruct and impede the due administration of justice (18 U.S.C. Sec. 1503) and for perjury before a grand jury (18 U.S.C. Sec. 1623). Following a jury trial, Vesich was sentenced to eighteen months' imprisonment on the obstruction charge and eighteen months' imprisonment, twelve of which were suspended, on the perjury charge. The obstruction charge was that on or about January 6, 1982, Vesich advised, urged and attempted to persuade a potential grand jury witness, Robert Fragale, to testify falsely before the United States Grand Jury for the Eastern District of Louisiana. The perjury charge was that during an October 21, 1982 grand jury appearance, Vesich falsely denied advising anyone to lie to a federal grand jury. Vesich's motion for judgment of acquittal was denied by the trial judge. United States v. Vesich, 558 F.Supp. 1192 (E.D.La.1983).

Vesich argues on appeal that the evidence was insufficient to establish that a judicial proceeding was "pending" as required to constitute a violation of the "due administration" clause of 18 U.S.C. Sec. 1503 or that he knew of such a proceeding. Vesich also contends that his perjury conviction must be reversed for evidential insufficiency and other grounds. He finally argues that trial testimony referring to "case fixing" and the bribery of a state judge substantially prejudiced his defense and requires a new trial as to both counts. Rejecting these contentions, we affirm.

OBSTRUCTION OF JUSTICE

Section 1503 is designed to protect individuals involved in federal judicial proceedings, as well as to prevent "miscarriage[s] of Justice by corrupt methods." Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). The language of section 1503 in effect in January 1982 was divisible into two parts. Its beginning and more specific language forbade corrupt endeavors to influence, intimidate or impede any witness, juror, or court official, while its concluding omnibus clause punished corrupt endeavors to influence, obstruct, or impede the "due administration of justice." United States v. Howard, 569 F.2d 1331, 1333 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). 1

A prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator. Pettibone v. United States, 148 U.S. 197, 205-07, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893); Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev'd on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941); Howard at 1337. A grand jury investigation is such a proceeding. Howard, supra. Vesich argues that no grand jury proceeding was pending at the time of the alleged obstruction of justice, because the evidence established only the possibility of such a proceeding. The trial judge instructed the jury that a pending judicial proceeding is one that has been "initiated but not yet settled or decided." See United States v. Koehler, 544 F.2d 1326, 1328 n. 3 (5th Cir.1977). Vesich did not object to that instruction and does not do so on appeal.

While pendency is clearly a requirement of the statute, we have not had occasion to determine when a judicial proceeding is "pending" for purposes of the "due administration" clause of section 1503. However, we are guided by the decisions of our sister circuits on this issue, as well as by our prior application of the statute. In United States v. Walasek, 527 F.2d 676 (3d Cir.1975), the court held that a proceeding was pending after the United States Attorney's office had assigned an investigation to a regularly sitting grand jury and a witness had been subpoenaed and called to testify. 2 While declining "to articulate any necessary minimum set of circumstances," the court found the evidence "sufficient to establish the 'pendency' of a judicial proceeding." Id. at 678. The court stated:

"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, 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." Id. (footnote omitted).

In United States v. Simmons, 591 F.2d 206 (3d Cir.1979), the only evidence submitted on the question of pendency was that a grand jury had been constituted and empaneled and that subpoenas were then issued to appear before it. 591 F.2d at 208. Although in Simmons, no witness had appeared to testify before the grand jury at the time of the alleged obstruction of justice, the court declined to distinguish Walasek on that ground. The Simmons court considered it unnecessary "that the grand In both of those cases, subpoenas had been issued by the grand jury at the time pendency was established. However, we do not consider that fact critical to their outcome. As Simmons pointed out,

jury be aware of the subpoena or otherwise involved in the investigation at the time of the alleged obstruction of justice ...." Id. at 210. 3

" 'Although grand jury subpoenas are occasionally discussed as if they were the instrumentalities of the grand jury, they are in fact almost universally instrumentalities of the United States Attorney's office or of some other investigative or prosecutorial department of the executive branch.' " Simmons at 210, quoting In re Grand Jury Proceedings, 486 F.2d 85, 90 (3d Cir.1973).

Further, we have long held that the issuance of a subpoena is not necessary to trigger application of the obstruction of justice statute. Samples v. United States, 121 F.2d at 266; Odom v. United States, 116 F.2d at 998. 4 As did the Walasek and Simmons panels, we too decline to establish a rule "by which some formal act of the grand jury will be required to establish 'pendency.' " Walasek at 678. Instead, we look to whether the investigating agency has acted "in furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated presentation of evidence before the grand jury." Id. In doing so, it is our obligation "to determine not what we might conclude as triers of the fact, but what a reasonable jury could conclude." United States v. Finney, 714 F.2d 420, 423 (5th Cir.1983). We must view the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility choices in the government's favor. United States v. Montemayor, 703 F.2d 109, 115 (5th Cir.1983). The test to be applied is "whether a reasonably-minded jury must necessarily entertain a reasonable doubt of the defendant's guilt." United States v. Ackal, 706 F.2d 523, 529 (5th Cir.1983), quoting United States v. Bethea, 672 F.2d 407, 411 (5th Cir.1982).

The chief evidence against Vesich was the tape of a January 6, 1982 telephone conversation between Vesich, a New Orleans attorney of many years' experience and state civil district court commissioner, and Robert Fragale, a former client of Vesich. The government claimed that during that conversation and a January 5, 1982 meeting, Vesich "advised, urged, and attempted to persuade Fragale" to testify falsely before the federal grand jury. The record indicates that at the time of those conversations, Fragale had been told by Assistant United States Attorney Albert Winters that he would be called to testify before a federal grand jury. Winters expected to call Fragale to testify before the United States Grand Jury empaneled in December, 1981 in the Eastern District of Louisiana at New Orleans, 5 and he had taken steps to initiate that appearance: he had secured a written agreement from Fragale to testify whenever called and a state narcotics charge against Fragale had been transferred into federal court. 6 On December Our conclusion is buttressed by our previous decisions requiring that the definition of "witness" under section 1503 be "determined with a view to substance, rather than form." United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979), cert. denied, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980), quoting United States v. Grunewald, 233 F.2d 556, 571 (2d Cir.1956), rev'd on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In Chandler, we applied a "pragmatic definition of a section 1503 'witness' in light of the protective purpose of the obstruction of justice statute ...," id. at 975, and held that a person who has testified at trial remains a witness within the meaning of section 1503 after the trial has concluded but while the case is on direct appeal before a United States court of appeals. See also Hunt v. United States, 400 F.2d 306, 307-08 (5th Cir.1968), cert. denied, 393 U.S....

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