U.S. v. Kulczyk

• Decision Date: 11 July 1991
• Docket Number: No. 89-30261,89-30261
• Citation: 931 F.2d 542
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis R. KULCZYK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 542

931 F.2d 542

UNITED STATES of America, Plaintiff-Appellee, v. Lewis R. KULCZYK, Defendant-Appellant.

No. 89-30261.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1991.

Decided April 22, 1991.

As Amended on Denial of Rehearing

July 11, 1991.

Michael J. Hemovich and Brian T. Butler, Hemovich, Nappi, Oreskovich & Butler, Spokane, Washington, for defendant-appellant.

Kim R. Lindquist, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before WIGGINS, BRUNETTI and T.G. NELSON, Circuit Judges.

WIGGINS, Circuit Judge:

Lewis R. Kulczyk appeals the district judge's denial of his motions for acquittal and for a new trial. The judge entered judgment on a jury's verdict finding the appellant guilty on eleven counts of mail fraud, 18 U.S.C. Sec. 1341, and three counts of witness tampering, 18 U.S.C. Sec. 1512. Kulczyk argues that the evidence adduced at trial does not support a conviction on the witness tampering charges. He also argues that the district judge abused his discretion in denying the motion for a new trial based on newly discovered evidence. The district court had jurisdiction under 18 U.S.C. Sec. 3231, and this Court has jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse in part.

BACKGROUND

Kulczyk was indicted by an Idaho federal grand jury charging him with one count of conspiracy (Count 1), eleven counts of mail fraud (Counts 2-12), and five counts of witness tampering (Counts 13-17). The mail fraud charges were based on a scheme to defraud several insurance companies by submitting claims for "stolen" logging equipment that the appellant had in fact hidden. Kulczyk intended to move two pieces of machinery, a feller-buncher and a skidder, from their normal site to another piece of property that he owned, where he intended to conceal the machines. The witness tampering charges were based on the appellant's attempts to persuade various persons to lie to FBI investigators, the grand jury and again at trial. After an initial mistrial, a second jury found Kulczyk guilty on eleven counts of mail fraud and three counts of witness tampering. ¹

Kulczyk moved for a judgment of acquittal as to the witness tampering charges at the close of the government's case and at the end of the trial. The motion was denied both times. After the verdict, Kulczyk filed motions for a judgment of acquittal and a new trial. The new trial motion was based on the appellant's claim that he had discovered significant new evidence. When those motions were denied, the judge sentenced the appellant and entered judgment.

Kulczyk filed a timely notice of appeal.

DISCUSSION

A. THE WITNESS TAMPERING CONVICTIONS

Each tampering charge was based on an attempt by Kulczyk to persuade a different person to testify falsely concerning the insurance fraud scheme. Count 13 charged that the appellant knowingly engaged in misleading conduct toward Larry Martin with the intent to cause Martin to lie to investigators and in official proceedings. Martin, an employee of the appellant, had assisted in concealing the allegedly stolen equipment. During the course of the FBI's investigation, Kulczyk requested that Martin falsely state that he had made two trips to the site from which the machines were supposedly stolen, when in fact he had made only one. Martin agreed to lie to that extent, but no further.

Count 15 charged that Kulczyk knowingly engaged in misleading conduct toward Robert Bowen with the intent to cause Bowen to lie to investigators and in official proceedings. Kulczyk asked Bowen to testify that he and Kulczyk were working on a job together at another location during the period when the machines were allegedly stolen. Bowen, in addition to knowing that the story was untrue, also had appointment book entries to indicate what he had actually done on the days in question.

Lastly, Count 17 charged that Kulczyk knowingly intimidated and/or engaged in misleading conduct toward Les Williams with the intent to cause Williams to lie to investigators and in official proceedings. Kulczyk promised to pay Williams to testify that Williams' father and Larry Martin were actually responsible for stealing the machinery. The appellant also threatened to have Williams killed if he did not cooperate.

Kulczyk argues that these allegations do not constitute witness tampering as that offense is defined in 18 U.S.C. Sec. 1512, the statute under which he was convicted. ² Specifically, he contends that the provision in that statute concerning "misleading conduct toward another person" applies only to cases where the defendant has misled, or attempted to mislead, the witness himself. Kulczyk argues that, because Martin, Bowen and Williams all knew that the story Kulczyk asked them to tell was false, he cannot be found to have engaged in misleading conduct toward them. ³ The appellant concedes that he asked the witnesses to mislead the FBI, the grand jury and the jurors at trial, but he contends that such conduct is not covered by Sec. 1512. ⁴ This Court reviews questions of statutory interpretation de novo. United States v. Polizzi, 801 F.2d 1543, 1547 (9th Cir.1986).

In support of his position, the appellant relies on the Second Circuit's decision in United States v. King, 762 F.2d 232 (2d Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1203, 89 L.Ed.2d 316 (1986). In that case, the Court affirmed the district court's order vacating a conviction under Sec. 1512 on the grounds that the evidence did not support a conviction under that statute. During an investigation into a counterfeiting scheme, King requested that a witness named Orgovan conceal King's involvement, promising that he would be financially rewarded for cooperating. As in Kulczyk's case, King's indictment charged that he had engaged in misleading conduct toward another person. The district judge vacated the jury's guilty verdict on the tampering charge, finding that " 'King, simply and flat-out, tried to persuade Orgovan to lie' to mislead the government." Id. at 237 (quoting United States v. King, 597 F.Supp. 1228, 1231 (W.D.N.Y.1984)). The Court of Appeals held that:

Since the only allegation in the indictment as to the means by which King induced Orgovan to withhold testimony was that King misled Orgovan, and since the evidence failed totally to support any inference that Orgovan was, or even could have been, misled, the conduct proven by the government was not within the terms of Sec. 1512.

Id.

Central to the holding in King--and central, therefore, to Kulczyk's argument--is the interplay between Sec. 1512 and 18 U.S.C. Sec. 1503. Section 1512 was enacted in 1982 as the major provision of the Victim and Witness Protection Act ("VWPA"). Before 1982, witness tampering was covered by Sec. 1503, which defined the offense of "Influencing or injuring officer, juror or witness generally." 18 U.S.C. Sec. 1503 (1948). In addition to specifying the types of actions toward court officers, jurors and witnesses that it covers, Sec. 1503 also contains a residual clause that criminalizes corrupt attempts to influence, obstruct or impede the due administration of justice. The Ninth Circuit held, before 1982, that this residual clause applies to cases where the defendant provided the witness with a false story to give to a grand jury. United States v. Gates, 616 F.2d 1103, 1107 (9th Cir.1980).

At the same time that Congress enacted the VWPA, it amended Sec. 1503 by removing all mention of witnesses from that section. Accordingly, Sec. 1503 now applies by its terms only to jurors and court officers. 18 U.S.C. Sec. 1503 (1982). Congress did not, however, change that section's residual clause.

Having deleted all reference in Sec. 1503 to witnesses, Congress then passed Sec. 1512, which is entitled "Tampering with a witness, victim, or an informant." That section specifies the types of tampering that it reaches; in addition to "misleading conduct," it also covers tampering attempted or achieved by means of killing, intimidation, physical force, threats, and intentional harassment. 18 U.S.C. Sec. 1512(a), (b), and (c). The Second Circuit ruled that, given this enumeration and the lack of a residual or catchall clause, Sec. 1512 was not intended to reach "conduct such as that proven here, i.e., the nonmisleading, nonthreatening, nonintimidating attempt to have a person give false information to the government...." King, 762 F.2d at 238. ⁵

Kulczyk, relying on the reasoning of the Second Circuit, argues that, because he did not mislead any of the witnesses, and because Sec. 1512 does not cover non-coercive, non-deceptive tampering, the convictions on Counts 13, 15, and 17 must be reversed. The government responds, first, that the evidence indicates that Kulczyk did in fact mislead the witnesses, and second, that even if he merely "urged and advised" the witnesses to lie, that conduct is covered by Sec. 1512. We address the government's arguments in reverse order.

1. "Urging and advising" false testimony and Sec. 1512

Under King, merely urging and advising a witness to give false testimony is not covered by Sec. 1512. In United States v. Bordallo, 857 F.2d 519, 524-26 (9th Cir.1988), amended 872 F.2d 334, cert. denied, --- U.S. ----, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989), this Court stated that King appears to conflict with the Fifth Circuit's decision in United States v. Wesley, 748 F.2d 962 (5th Cir.1984), cert. denied sub nom. Cooper v. United States, 471 U.S. 1130, 105 S.Ct. 2664, 86 L.Ed.2d 281 (1985). This Court in Bordallo found it unnecessary to resolve this conflict, as the conduct at issue in that case supported a conviction under either King or Wesley. Bordallo, 857 F.2d at 525.

The government argues that Kulczyk's conduct supports the witness tampering convictions under either King or Wesley, and that we therefore do not have to decide which standard is...