U.S. v. Lench, 86-1086
Decision Date | 30 December 1986 |
Docket Number | No. 86-1086,86-1086 |
Citation | 806 F.2d 1443 |
Parties | 1986-2 Trade Cases 67,393 UNITED STATES of America, Plaintiff/Appellee, v. Frank P. LENCH, Defendant/Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Marion L. Jetton, U.S. Dept. of Justice, Washington, D.C., for plaintiff/appellee.
Richard Haas, Moses Lasky, Lasky, Haas, Cohler & Munter, San Francisco, Cal., for defendant/appellant.
On Appeal from the Northern District of California.
Before WRIGHT, SNEED and KOZINSKI, Circuit Judges.
Frank P. Lench was convicted of obstructing justice in violation of 18 U.S.C. Sec. 1503 (1984), by concealing information subpoenaed by two grand juries. He was sentenced to two years in prison. Lench attacks his conviction on many grounds, among them that his conduct was not proscribed by section 1503, that there was insufficient evidence to sustain the conviction and that there was an impermissible variance between indictment and proof.
Lench was the Regional Vice President in charge of the Martinez, California office of the Howard P. Foley Co. (Foley), a nationwide electrical contracting firm. In May 1982, a federal grand jury in the District of Columbia investigating possible antitrust violations in the electrical construction industry issued a subpoena duces tecum directed to Foley. The subpoena requested a wide variety of documents relating to the activities of certain employees, including Lench, from 1972 to 1982. Among the requested materials were "notebooks prepared or used in the course of employment," records of telephone calls to or from these employees and documents relating to unsuccessful Foley bids of more than $1 million.
Foley's General Counsel, Robert Gants, wrote Lench on June 17, 1982. He enclosed a copy of the subpoena and provided detailed instructions for complying with it. On June 28, 1982, Gants sent Lench a memo stating that the subpoena had been modified to permit Foley to submit bid summary sheets for certain projects in lieu of all documents used in preparing bids. 1
On June 29, 1982, Lench sent Foley's attorneys various documents, including bid summary sheets for unsuccessful bids beginning in January 1981. In a cover letter, he represented that his office did not maintain records of telephone calls or copies of phone bills and that "[o]ur files of estimates of past bids only extends [sic] back to January of 1981." Evidence at trial showed that both of these statements were false. Relying on the information Lench provided, Foley's attorneys executed an affidavit representing to the grand jury that Foley had searched its files and provided all subpoenaed documents.
Rick Erwin, who worked for Lench when the June 1982 letter and memo from Gants arrived, testified that Lench instructed him to destroy certain materials which could document bid rigging prior to 1981 and that Lench said he would take care of other incriminating evidence, including telephone bills. It is unclear whether Erwin actually destroyed any documents. He did, however, fill 14 boxes with pre-1981 bid information and marked each box with green tape in the shape of an X.
In January 1984 a federal grand jury in San Francisco was investigating bid rigging. It issued a subpoena duces tecum to Foley demanding documents similar to those requested by the Washington, D.C., grand jury but covering the period 1976 to 1984. Lench received a copy of the subpoena together with an explanation from Foley's attorneys. Shortly afterward, he learned that Foley had agreed to cooperate with the grand jury and that Thomas Carey, another Foley vice president, would conduct the search of Lench's files for subpoenaed documents. The next day, a Saturday, Lench, working alone and using his own car, moved to his garage the 14 boxes marked with green X's and a box containing photocopied telephone bills. The bills documented extensive contacts between Foley's Martinez office and competitors around the time bids were due.
In March 1984, after the search of the Martinez office, one of Foley's attorneys, Robert McDermott, provided the government with a copy of the compliance affidavit for the Washington subpoena plus additional documents responsive to the San Francisco subpoena. McDermott was not aware of the 15 boxes in Lench's garage or of certain records Lench maintained in his home. Lench did not provide those documents to Carey or bring them to McDermott's attention.
Erwin testified before the San Francisco grand jury in March 1984 about the boxes of documents that had not been produced and about his discussions with Lench concerning concealment and destruction of evidence. Based on this testimony, the government obtained a search warrant for Lench's home. The search produced the 15 boxes in Lench's garage, 13 notebooks in which Lench had made business-related notations and a green folder containing bid summary sheets.
Lench was convicted after jury trial on two counts of obstructing justice, one based on his concealment of documents from the Washington grand jury and the other based on his concealment from the San Francisco grand jury.
We start with United States v. Rasheed, 663 F.2d 843 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982), where we held that failure to provide documents requested by a grand jury subpoena duces tecum violated 18 U.S.C. Sec. 1503. Lench attempts to distinguish Rasheed, arguing that his obligation to produce documents never matured because the return date under the subpoena was indefinitely extended by agreement between Foley's lawyers and the government. But Lench tells only half the story. In his June 17, 1982, letter, Foley's Vice President Gants advised Lench that Instructions accompanying the letter noted that
Foley's obligation under the subpoena was changed somewhat by the agreement; it was not nullified. Foley's arrangement with the government obligated Foley's employees to respond fully, accurately and promptly to the lawyers' request, with the understanding that the information provided would then be passed on to satisfy the subpoena. Lench was warned that "[t]his is a serious exercise [and there] are substantial criminal penalties for intentional disregard of the terms and conditions of a grand jury subpoena." Nevertheless, he failed to provide the information requested and lied to Foley's attorneys, advising them that the information did not exist.
These actions constitute at least an endeavor to conceal, if not outright concealment. Under section 1503, that is all that is necessary to obstruct justice. United States v. Washington Water Power Co., 793 F.2d 1079, 1085...
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