U.S. v. Silverman

• Decision Date: 05 November 1984
• Docket Number: No. 82-5903,82-5903
• Parties: 16 Fed. R. Evid. Serv. 1316 UNITED STATES of America, Plaintiff-Appellee, v. Harvey I. SILVERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1386

745 F.2d 1386

16 Fed. R. Evid. Serv. 1316

UNITED STATES of America, Plaintiff-Appellee, v. Harvey I. SILVERMAN, Defendant-Appellant.

No. 82-5903.

United States Court of Appeals Eleventh Circuit.

Nov. 5, 1984.

Lyons & Farrar, P.A., Marsha L. Lyons, Coral Gables, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CLARK, Circuit Judges, and GOLDBERG ^*, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Harvey I. Silverman, an attorney, appeals his conviction, following trial by jury, of the crime of corruptly endeavoring to influence, obstruct or impede the due administration of justice. 18 U.S.C. Sec. 1503 (1976). ¹ We find no reversible error and accordingly affirm.

I.

Harvey I. Silverman is a thirty-nine year old attorney practicing law in Tamarac, Florida. In February 1981, Carlos Angel Munoz hired Silverman to represent him, his wife and his two brothers on several federal criminal charges stemming from their participation in the "Mariel boatlift." ² On the combined offenses, Munoz faced a possible maximum prison sentence of thirteen years, six months, plus a fine of $515,500; his wife and two brothers each faced a possible maximum prison sentence of five years, six months, plus a $10,500 fine. Silverman had previously represented Munoz in civil actions connected with the boatlift.

Prior to the Munoz trial, Silverman entered into plea negotiations with the prosecutor, Assistant U.S. Attorney William Norris. Norris told Silverman that if Carlos Angel Munoz would plead guilty to one of the major offenses charged, his two brothers and his wife would be allowed to plead guilty to a lesser offense, and the remaining charges against all four defendants would be dismissed. Norris stated that he did not know what type of sentence Munoz could expect but that the others would likely receive six months probation. Norris also stated that he would make no sentencing recommendation and that the final decision would be strictly up to the judge. Silverman asked Norris' opinion of whether the judge might be lenient if Munoz made restitution to the Cuban families who paid him to transport their relatives from Cuba. Norris opined that restitution might make a difference, but cautioned Silverman that he had nothing on which to base his opinion.

After this conversation with the prosecutor, Silverman attempted to extort money from Munoz by telling him that he could "fix" the case for $25,000. Silverman told Munoz that the money would be paid to "some very powerful people" with connections in the Department of Justice, who would ensure that if he and his brothers pled guilty they would receive sentences of probation rather than imprisonment, and the case against his wife would be dismissed. Silverman's statement was false; he did not intend to pay anyone.

Silverman moved quickly to carry out his scheme. He went to Munoz' home accompanied by two unidentified men and introduced them as the recipients of the $25,000. The men told Munoz that they had already fixed the case and if he failed to pay the money he and his wife would go to jail and his brothers would be deported. These threats frightened Munoz. In an effort to protect himself, he purchased a tape recorder and recorded his subsequent telephone conversations with Silverman. These taped conversations confirmed Silverman's scheme. Munoz took the recordings to the district judge presiding over his case who, in turn, referred Munoz to the F.B.I. Munoz thereafter recorded additional conversations with Silverman, all under the supervision of the F.B.I. ³

On August 13, 1981, a federal grand jury indicted Silverman, charging him with willfully and corruptly endeavoring to obstruct and impede the due administration of justice, in violation of 18 U.S.C. Sec. 1503 (1976). ⁴ Silverman moved to dismiss the indictment for failure to allege the elements necessary to establish a violation of that statute. His motion was denied.

Silverman went to trial on June 7, 1982. ⁵ The government established the facts we have set forth, and Silverman attempted to clothe them with an innocent explanation. Testifying in his own defense, he admitted asking Munoz for $25,000 but said that the money was to be paid as restitution to the Cuban families who had contracted with Munoz to transport their relatives from Cuba in the Mariel boatlift. Silverman's testimony was heavily impeached on cross-examination, in part with the incriminating tape recordings Munoz had made. In an attempt to rehabilitate himself, Silverman presented the testimony of several character witnesses, who vouched for his truthfulness. The government, in rebuttal, countered this character evidence with the testimony of a lawyer and one of Silverman's former clients, who opined that he was unworthy of belief. The jury found Silverman guilty as charged.

II.

Silverman presents five claims of error in this appeal. First, the indictment failed to allege the elements of an 18 U.S.C. Sec. 1503 (1976) offense. Second, the evidence was insufficient to support his conviction. Third, the court erred in refusing to grant his requested jury instruction on the elements of the offense. Fourth, the prosecutor improperly subpoenaed him to produce confidential complaints of unethical conduct made against him by former clients and The Florida Bar. Fifth, various other trial errors combined to deny him a fair trial. We consider these claims in order.

A.

Silverman contends that the court erred in denying his motion to dismiss the indictment because it failed to allege a violation of 18 U.S.C. Sec. 1503 (1976). We find no error. The sixth amendment guarantees every defendant the right to be informed of the government's accusation against him. Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240 (1962). The accusation must be legally sufficient, i.e., it must assert facts which in law amount to an offense and which, if proved, would establish prima facie the accused's commission of that offense. Fleisher v. United States, 302 U.S. 218, 58 S.Ct. 148, 82 L.Ed. 208 (1937); United States v. Haas, 583 F.2d 216, 219 (5th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). ⁶ As Fed.R.Crim.P. 7(c) provides, an indictment must be a "plain, concise and definite written statement of the essential facts constituting the offense charged."

The three essential elements of the type of 18 U.S.C. Sec. 1503 (1976) offense presented here are that the accused (1) corruptly or by threats, (2) endeavored, (3) to influence, obstruct, or impede the due administration of justice. United States v. Fasolino, 586 F.2d 939, 940 (2d Cir.1978). Silverman contends that the indictment failed sufficiently to allege the second and third elements: that he endeavored to have Munoz take any action to influence, obstruct, or impede the due administration of justice.

The validity of an indictment is determined by reading it as a whole, giving practical effect to its language. United States v. Haas, 583 F.2d at 219. The indictment stated, in pertinent part, that

Harvey I. Silverman, falsely represented to Carlos Munoz that, if Carlos Munoz paid him money, he would pay it to powerful and dangerous people who could assure that, if Carlos Angel Munoz and his brothers pled guilty [to the indictment in their case], they would receive sentences of probation rather than imprisonment. He further falsely represented that, if the money were paid, charges would be dropped completely against [Munoz' wife].

In other words, the indictment charged Silverman with corruptly trying to induce his clients to plead guilty under the delusion that their criminal proceedings had been "fixed." The test is not whether the indictment might have been drawn with greater exactitude, but rather whether it conformed to the minimal constitutional requirements. United States v. London, 550 F.2d 206, 211 (5th Cir.1977). With this in mind, we consider whether the indictment alleged the second and third elements of a section 1503 offense.

1.

"Endeavor," as used in 18 U.S.C. Sec. 1503 (1976), describes any effort or assay to accomplish the evil purpose the statute was enacted to prevent. United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553 (1921). Knowledge and intent are necessary to sustain a conviction under section 1503. United States v. Haas, 583 F.2d at 220. The government is not required to prove, however, that the defendant harbored the specific purpose of obstructing the due administration of justice; all the government has to establish is that the defendant should have reasonably foreseen that the natural and probable consequence of the success of his scheme would achieve precisely that result. United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir.), cert. denied, 441 U.S. 963, 99 S.Ct. 2410, 60 L.Ed.2d 1068 (1979); accord United States v. Buffalano, 727 F.2d 50, 54 (2d Cir.1984).

In the present case, the indictment alleged that Silverman attempted to obtain money from Munoz under the pretext of fixing the case, so that he and his brothers, upon entering guilty pleas, would receive sentences of probation and his wife would go free. The natural and probable consequence, if not the desired consequence, of such conduct would be that the three men would plead guilty without disclosing the fix to the court. These facts, if proven, plainly constituted an "endeavor" for the purpose of 18 U.S.C. Sec. 1503 (1976).

2.

Section 1503 forbids interferences with the due administration of justice, i.e., judicial procedure. United States v. Howard, 569 F.2d 1331, 1337 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). The statute reaches all corrupt conduct capable of producing an effect that prevents justice from being duly...