U.S. v. Masterpol

• Decision Date: 24 July 1991
• Docket Number: No. 1417,D,1417
• Citation: 940 F.2d 760
• Parties: UNITED STATES of America, Appellee, v. Nicholas J. MASTERPOL, Defendant-Appellant. ocket 90-1688.
• Court: U.S. Court of Appeals — Second Circuit

Page 760

940 F.2d 760

UNITED STATES of America, Appellee, v. Nicholas J. MASTERPOL, Defendant-Appellant.

No. 1417, Docket 90-1688.

United States Court of Appeals, Second Circuit.

Argued May 24, 1991.

Decided July 24, 1991.

W. Neill Eggleston, Washington, D.C. (Leiv H. Blad, Jr., Howrey & Simon, of counsel), for defendant-appellant.

Andrew T. Baxter, Asst. U.S. Atty., N.D.N.Y., Syracuse, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., of counsel), for appellee.

Before VAN GRAAFEILAND, MESKILL and McLAUGHLIN, Circuit Judges.

MESKILL, Circuit Judge:

Nicholas J. Masterpol appeals from a judgment entered after a jury trial in the United States District Court for the Northern District of New York, McCurn, J., convicting him of obstructing justice in violation of 18 U.S.C. Sec. 1503 and of submitting a false statement within the jurisdiction of a United States court in violation of 18 U.S.C. Sec. 1001. He contends that neither statute covers the conduct for which he was indicted. We agree and reverse both convictions.

BACKGROUND

In 1988, Nicholas Masterpol was indicted on charges of racketeering, bribery, mail fraud, conspiracy, false statements, perjury and tax fraud. The charges arose in part from Masterpol's attempt to defraud Oliver Schools, Inc. by overcharging it for renovation work that Masterpol's construction company had performed. During the ensuing trial on several of these charges two former employees of Masterpol, Daniel Tagliamonte and Royal Cooper, testified against Masterpol. Both witnesses testified that they had been paid less for their work on the renovation project than Masterpol reported to Oliver Schools. On November 2, 1989, a jury convicted Masterpol on several of the charges in the indictment. Masterpol subsequently pleaded nolo contendere to other charges in the indictment. Sentencing was scheduled for January 19, 1990 before Judge Munson.

Shortly before sentencing, Masterpol met individually with Tagliamonte and Cooper. Masterpol urged them to write letters to Judge Munson recanting portions of their trial testimony. At Masterpol's behest, Tagliamonte and Cooper wrote the letters, indicating that they had received either a combination of cash and gifts, or cash alone, from Masterpol equalling the amount that Masterpol claimed to have paid them--in other words, that Masterpol had in fact paid both employees what he had reported to Oliver Schools. According to the government, Masterpol made a copy of the Tagliamonte letter and submitted it to Judge Munson as an attachment to Masterpol's sentencing memorandum. During the sentencing proceedings, Masterpol's attorney presented a copy of the Cooper letter to Judge Munson for consideration in imposing Masterpol's sentence.

Judge Munson sentenced Masterpol to three years imprisonment.

On February 21, 1990, a federal grand jury returned a second indictment against Masterpol. This indictment was directed at Masterpol's conduct in seeking to influence Tagliamonte and Cooper. Count one alleged that Masterpol attempted to obstruct justice in violation of 18 U.S.C. Sec. 1503 when he urged Cooper and Tagliamonte to recant their trial testimony. Count two alleged that Masterpol aided and abetted a violation of 18 U.S.C. Sec. 1001 by knowingly submitting a copy of a false letter written by Cooper within the jurisdiction of a department of the United States, namely, the United States District Court for the Northern District of New York. Masterpol filed pre-trial motions seeking to have both charges dismissed. The district court denied both motions and the case proceeded to trial. After a four day trial, the jury returned a guilty verdict against Masterpol on both counts. The district court sentenced Masterpol to a twenty-one month term of imprisonment. The first twelve months of the term were imposed in connection with his violations of sections 1503 and 1001 and were to run concurrently with Masterpol's sentence for his earlier conviction. The court ordered that the remaining nine months of the sentence be served consecutively, pursuant to 18 U.S.C. Sec. 3147, because Masterpol committed the offenses while released on bail.

On appeal Masterpol renews his contention that sections 1503 and 1001 do not reach the conduct for which he was charged. He also argues that the district court erred in enhancing his sentence under 18 U.S.C. Sec. 3147.

DISCUSSION

A. Obstruction of Justice--18 U.S.C. Sec. 1503

Masterpol was prosecuted under the residual clause of 18 U.S.C. Sec. 1503, which authorizes criminal prosecution of one who "corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." Masterpol contends that he was improperly convicted of violating section 1503. He claims that section 1503, after its amendment in 1982, no longer covers witness tampering. In his view, if he was to be charged under the "Obstruction of Justice" chapter of Title 18, section 1501 through section 1517, he should have been charged under section 1512 or not at all. We agree.

We confronted a similar issue in United States v. Hernandez, 730 F.2d 895 (2d Cir.1984). There the defendant was convicted of violating 18 U.S.C. Secs. 1503 and 1512 for threatening a witness in order to obtain documentary evidence. The defendant in Hernandez conceded that he was properly convicted of violating section 1512. He argued, however, that the enactment in 1982 of the Victim and Witness Protection Act, Pub.L. No. 97-291, 96 Stat. 1248 (1982), removed from section 1503's purview witness tampering. In support of this argument, he noted that Congress in 1982 deleted all references to witnesses from section 1503, entitled "Influencing or injuring officer or juror generally," and enacted a new provision, section 1512, which was entitled "Tampering with a witness, victim, or an informant" and which was addressed specifically to contacts with witnesses. Hernandez, 730 F.2d at 898. The government sought to counter this argument by contending "that although Sec. 1512 absorbs some of the jurisdiction previously given to Sec. 1503, Congress intended, in effect, to create two crimes, making witness intimidation and harassment punishable not only under Sec. 1512, but also under the residual clause of Sec. 1503." Id. After examining what Congress did in simultaneously enacting section 1512 and deleting all references to witnesses in section 1503, as well as what Congress said it did in the relevant legislative history, see id. at 899, we rejected the government's argument. We noted that congressional intent was "graphically demonstrated by examining those portions of Sec. 1503 that congress expressly deleted" and "conclude[d] that congress affirmatively intended to remove witnesses entirely from the scope of Sec. 1503." Id. at 898. See also United States v. Jackson, 805 F.2d The government now seeks to limit Hernandez. It notes that Hernandez involved a coercive attempt to influence a witness, whereas in this case Masterpol urged witnesses to make false statements without resort to intimidation or harassment. Such noncoercive witness contacts, says the government, are still covered by the residual clause of section 1503 because, otherwise, "noncoercive witness tampering, including corrupt efforts to urge witnesses to make false statements, would not be proscribed by either Section 1512 or Section 1503." This limiting construction of Hernandez has been accepted by other circuits and by district courts in this Circuit. See, e.g., United States v. Lester, 749 F.2d 1288, 1295 (9th Cir.1984); United States v. Beatty, 587 F.Supp. 1325, 1331-33 (E.D.N.Y.1984). The force of these precedents, however, was diminished significantly in 1988 when Congress amended section 1512.

457, 461 (2d Cir.1986) (construing Hernandez as holding that "18 U.S.C. Sec. 1512, a specific victim and witness protection statute, overrode the more general obstruction of justice statute, [section 1503]"), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987).

Section 1512(b), as amended, reads in pertinent part:

Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so ... with intent to--

(1) influence, delay, or prevent the testimony of any person in an official proceeding ... [violates the laws of the United States].

(emphasis added). The "corruptly persuades" language was added to the statute in 1988--well before Masterpol's obstructive conduct in January 1990. Notably, this language reaches noncoercive witness contacts. In fact the conduct described in Masterpol's indictment is nearly identical to that which may be charged under section 1512. The indictment charges that Masterpol "corruptly ... attempted to persuade " witnesses Cooper and Tagliamonte. The government, moreover, candidly admits in its sur-reply brief that if it "had been aware of the 1988 amendment of Section 1512, the Assistant United States Attorney responsible for the case might have sought to charge Masterpol ... under both 18 U.S.C. Sec. 1503 and Sec. 1512." Thus, what justification there once was for giving Hernandez a narrow construction now lacks merit, at least where, as in this instance, there appears to be no statutory vacuum. In any event, to the extent a gap remains in the legislative scheme covering noncoercive witness contacts, "the proper remedy is not for the courts to distort the plain language of [the statute] but for Congress to enact legislation to close the gap." United States v. King, 762 F.2d 232, 238 (2d Cir.1985) (rejecting attempt to extend section 1512 to "nonmisleading, nonthreatening, nonintimidating attempt to have a person give false information"), cert. denied, 475 U.S. 1018, 106 S.Ct. 1203, 89 L.Ed.2d 316 (1986). Furthermore, the government points to no cases decided after the 1988 amendment to section 1512 that have given Hernandez a narrow reading. In view of these...