U.S. v. Cintolo

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before CAMPBELL, Chief Judge, BREYER and SELYA; SELYA
• Citation: U.S. v. Cintolo, 818 F.2d 980 (1st Cir. 1987)
• Decision Date: 01 May 1987
• Docket Number: No. 85-1615,85-1615
• Parties: UNITED STATES of America, Appellee, v. William J. CINTOLO, Defendant, Appellant.

Page 980

818 F.2d 980

UNITED STATES of America, Appellee, v. William J. CINTOLO, Defendant, Appellant.

No. 85-1615.

United States Court of Appeals First Circuit.

Argued Feb. 3, 1987.

Decided May 1, 1987.

Francis J. DiMento with whom DiMento & Sullivan, Boston, Mass., Anthony M. Traini, Leppo & Traini, Randolph, Mass., Norman S. Zalkind, Robert L. Sheketoff, Kimberly Homan, David Duncan and Zalkind, Sheketoff, Homan & Rodriquez, Boston, Mass., were on brief, for defendant, appellant.

Max D. Stern and Stern & Shapiro, on brief, for Nat. Network for the Right to Counsel, amicus curiae, and Harvey A. Silverglate, Andrew Good, and Silverglate, Gertner, Baker, Fine, Good & Mizner, Boston, Mass., on brief, for Massachusetts Ass'n of Criminal Defense Lawyers, amicus curiae.

Diane M. Kottmyer, Sp. Atty., Dept. of Justice, with whom Stephen P. Heymann and Jeremiah T. O'Sullivan, Sp. Attys., and Robert S. Mueller III, U.S. Atty., Boston, Mass., were on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This case deals with the manner in which one member of the criminal defense bar chose, in his own sense, to read and to act upon the bitter letter of the law. In the bargain, the case presents important questions concerning the relation of an attorney to the fabric of federal law which Congress has woven to prevent obstruction of justice.

In December 1984, a grand jury sitting in the District of Massachusetts returned an indictment against William J. Cintolo, a practicing criminal defense attorney, charging him with one count of conspiracy to obstruct justice, 18 U.S.C. Secs. 371, 1503, and two substantive counts of obstruction of justice, 18 U.S.C. Sec. 1503. After a lengthy trial, the jury found the defendant guilty on the conspiracy count, but not guilty on the substantive obstruction counts. Cintolo was thereafter sentenced to a prison term, the execution of which was stayed pending appeal. We affirm.

When the sufficiency of the proof is challenged on postconviction appeal in a criminal case, we necessarily view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Medina, 761 F.2d 12, 16 n. 3 (1st Cir.1985); United States v. Tierney, 760 F.2d 382, 384 (1st Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985); United States v. Davis, 623 F.2d 188, 195 (1st Cir.1980). Drawing all legitimate inferences which tend to support the government's case, United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981), and resolving any conflicts in the evidence against the appellant, United States v. DeLucca, 630 F.2d 294, 300 (5th Cir.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981), our task is to determine whether "the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom, [are enough that] a rational trier of the facts could have found the appellant guilty beyond any reasonable doubt." Tierney, 760 F.2d at 384. See also United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984); Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). With that standard in mind, we proceed to survey the evidence adduced in this case.

I.

Cintolo's indictment and ultimate conviction grew out of the judicially sanctioned electronic surveillance of an apartment at 98 Prince Street in Boston's North End. These premises were used by Gennaro Angiulo and his associates ¹ as a headquarters and office for the operation of illegal gambling and loansharking businesses. "Loansharking" is a term of criminal art which may roughly be defined as the unlawful lending of money at usurious rates of interest, repayment being encouraged by the employment (or threatened employment) of unorthodox collection measures, involving, inter alia, the breaking of bones.

The Federal Bureau of Investigation (FBI) monitored the conversations which took place on the premises from January 19 to May 3, 1981. The surveillance was conducted primarily by means of hidden microphones clandestinely emplaced within the apartment. These devices recorded conversations between Angiulo and his confederates, including Cintolo. In addition, a concealed exterior camera surreptitiously photographed persons entering and leaving the headquarters.

What this intensive scrutiny revealed vis-a-vis the appellant can usefully be summarized by reference to the true bill which the grand jury returned. The indictment charged that Cintolo conspired with Angiulo and others to violate 18 U.S.C. Sec. 1503. ² The gravamen of the accusation was that Cintolo did "corruptly endeavor to influence, obstruct and impede the due administration of justice" by befouling the proceedings of a federal grand jury investigating the criminal activities of the Angiulo gang. According to the indictment, Cintolo set out to accomplish this nefarious end through the use of his position as attorney of record for Walter LaFreniere, a witness before the grand jury, to acquire information about the ongoing investigation for Angiulo's benefit. The indictment further charged Cintolo with knowingly assisting Angiulo in his efforts to inhibit LaFreniere, after the latter had been granted immunity, from testifying truthfully before the grand jury, or from cooperating in any way with the investigation.

Tape recordings played for the jury at Cintolo's trial ³ established that LaFreniere and his father-in-law, Louis Venios, possessed damaging information linking various members of Angiulo's organization to illegal gambling and loansharking activities. Among other things, the evidence disclosed that both Venios and LaFreniere had been extended substantial credit to cover unpaid gambling debts, and that each had been subjected to exacting pressure from various of Angiulo's minions to remit the overdue sums. When subpoenas issued to Venios and LaFreniere indicating that the grand jury was investigating possible violations of 18 U.S.C. Secs. 892-94 (making, financing, and collecting extortionate extensions of credit), Angiulo recognized the legal peril which faced him and his confreres. Notwithstanding that on March 12, 1981, after first being interviewed by FBI agent Quinn, LaFreniere appeared before the grand jury and refused to testify on fifth amendment grounds, Angiulo remonstrated with his brother, Donato:

Remember, they're not sayin' this or this or that. They're saying, "Angiulo" ... "Angiulo." It might be me, you, him, him, and him, too. Nobody knows. Under RICO, no matter who ... we are, if we're together, they'll get every ... one of us.

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We've been sleepin'.... As soon as that ... guy got that ... summons, shoulda got a kid like Cintolo and said, "You hire a ... detective and tell him to stand at that grand jury. I want to know everybody that goes in there."

Following extended discussions among Angiulo and his cohorts, assessing the extent of LaFreniere's knowledge and speculating on the possible foci of the grand jury's investigation, Donato Angiulo sent LaFreniere to meet with the appellant. Shortly thereafter, the lawyer assembled with Gennaro Angiulo and others--not including LaFreniere--to discuss the sweep of the grand jury inquiry and Cintolo's newfound "client." At this session, Angiulo told Cintolo that "about three and a half, four weeks ago, ... these guys should have gotten you and told you what I wanted." Angiulo explained that LaFreniere had been delivering payments to him on behalf of Venios, and that LaFreniere's name appeared on a "cuff sheet," i.e., a written list kept to show amounts of borrowings and identities of borrowers. (The cuff sheet in question related to an illegal "barbooth game" operated by Angiulo's son, Jason.)

Angiulo then told Cintolo the questions which had been propounded to Venios before the grand jury. These questions concerned, inter alia, whether Venios had ever "okay[ed] Walter LaFreniere for money with someone or anyone on the shylock." (In the vernacular, "shylock" and "loanshark" are roughly synonymous terms.) Venios's discretion and loyalty had been tested over time, and Angiulo appeared to have considerable confidence in him. Yet, Angiulo was plainly apprehensive over the family's potential exposure should LaFreniere fail to "stand up," i.e., to go to jail rather than to testify truthfully before the grand jury. Angiulo mused, "why is this worrying me? This kid owes money on the shark.... [H]e's gotta be protected. This kid should never have gone to the grand jury by himself."

The appellant immediately reassured Angiulo. Cintolo told him that he had already "got out of" LaFreniere a list of the questions asked both in the FBI interview and in the grand jury. Cintolo then recounted these questions and LaFreniere's responses thereto for Angiulo's benefit. The conversation concluded with Angiulo instructing the appellant to call LaFreniere in and size him up. Angiulo told Cintolo: "I got a decision to make. I want to have it all in front of me. Louis I can believe. This kid? Double talks."

On March 19, 1981, Wendy Collins, a federal prosecutor, notified LaFreniere to report to the grand jury the following Thursday. That evening, Cintolo spoke with Angiulo:

Angiulo: You going to explain to him that you feel that he's gonna get immunity? There's no other way out of it, is there? Huh?

Cintolo: No. I, I'll explain it to him. Figured somebody else might want to talk to him first....

Angiulo: His father-in-law says already that as far as this kid is concerned, one thing you can say he's a ... man. If he's got time to do, he'll do it. But I don't think they figure on immunity. You understand? They're not that ... smart. Did we find out anything about this grand jury?

Cintolo: Nothing yet.

Angiulo: I would...