United States v. Vesich

• Decision Date: 07 March 1983
• Docket Number: Crim. No. 82-452.
• Citation: 558 F. Supp. 1192
• Parties: UNITED STATES of America v. Anthony J. VESICH, Jr.
• Court: U.S. District Court — Eastern District of Louisiana

558 F. Supp. 1192

UNITED STATES of America v. Anthony J. VESICH, Jr.

Crim. No. 82-452.

United States District Court, E.D. Louisiana.

March 7, 1983.

COPYRIGHT MATERIAL OMITTED

Ronald A. Fonseca, Lance M. Africk, U.S. Attorney's Office, New Orleans, La., for the U.S.

Daniel J. Markey, Jr., and Patrick Hand, Hand & Markey, New Orleans, La., for defendant Anthony J. Vesich, Jr.

ORDER

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on the motion of defendant for judgment of acquittal as to Counts 1 and 2 of the Indictment.¹ Following oral argument, and considering the record in the matter and the applicable law, for the reasons hereinafter set out, defendant's motion was DENIED.

With respect to Count 1 of the Indictment, defendant has urged several grounds requiring a judgment of acquittal: (1) that given its normal, usual and literal meaning, the language of defendant cited in the indictment as "advising," "urging" and "persuading" Robert R. Fragale to testify falsely is not an instruction or advice to lie; (2) that at no time pertinent thereto was Robert R. Fragale a witness before the Federal Grand Jury, it not being even alleged in the indictment that Fragale was a witness or that he had been subpoenaed as a witness before any Federal Tribunal; (3) that there was no pending judicial proceeding at the time of the alleged "obstruction" which would qualify as "administration of justice" within the meaning of § 1503; and (4) that even if there was a pending judicial proceeding which qualifies as "administration of justice" within the meaning of § 1503, the government has not proved that defendant was aware of any such proceeding.

The first ground can be disposed of summarily, in that the language set forth in the indictment, and the evidence presented by the government, is certainly sufficient to reasonably support a jury verdict that the defendant "advised, urged, and attempted to persuade Robert R. Fragale to testify falsely," as alleged in the indictment.

With regard to grounds (2) and (3), some confusion may be engendered by the fact that § 1503 contains both a specific provision — the first clause of § 1503 — prohibiting any corrupt endeavor to influence, intimidate, or impede a witness, and a more general provision — the last clause of § 1503 — prohibiting any corrupt endeavor to influence, obstruct, or impede the due administration of justice. A prosecution for corruptly endeavoring to influence an individual to give false testimony to a grand jury may, however, be brought under the more specific first clause of § 1503 or the broader "due administration" clause for "that clause `is broad enough to cover any act, committed corruptly, in an endeavor to impede or obstruct the due administration of justice.'" United States v. Partin, 552 F.2d 621, 631 (5th Cir.), cert. denied 434 U.S. 903, 54 L.Ed.2d 189 (1977), citing Samples v. United States, 121 F.2d 263, 266 (5th Cir.), cert. denied 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). This prosecution is clearly brought under the broader "due administration" clause of § 1503, as evidenced by the language of the indictment charging that the defendant "corruptly did endeavor to influence, obstruct and impede the due administration of justice ... knowing that Robert R. Fragale was a prospective witness to appear before the United States Grand Jury for the Eastern District of Louisiana...."

With regard to ground (2) specifically, now, an examination of the Fifth Circuit law on the question readily reveals that to sustain a conviction under § 1503, it is not necessary that at the time of the "obstruction" the individual corruptly influenced actually be a witness or be subpoenaed as a witness before a Federal Tribunal. As stated in United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979), cert. dismissed, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980):

This court has defined a section 1503 witness as one who `knows or is supposed to know material facts, and is expected to testify to them, or to be called on to testify....' Hunt v. United States, 400 F.2d 306, 307 (5th Cir.1978), cert. denied, 393 U.S. 1021 89 S.Ct. 629, 21 L.Ed.2d 566 (1969)...; Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev'd on other grounds, 313 U.S. 544 61 S.Ct. 957, 85 L.Ed. 1511 (1941).... Indeed, the statute's very purposes of protecting participants in federal judicial proceedings and preventing interference by corrupt methods with the administration of justice, Samples v. United States, 121 F.2d 263, 265 (5th Cir.1941) (construing 18 U.S.C. § 241, a precursor of 18 U.S.C. § 1503), require that the connotation of `witness' be `determined with a view to substance, rather than form' ....

Thus, we have held that a person `may be a witness within the protection of this statute though he may not be under formal subpoena.' Odom v. United States, supra (construing 18 U.S.C. §§ 241 and 242, now 18 U.S.C. § 1503). And we have ruled that an informer who had given information to the government, resulting in the filing of a complaint with a United States Commissioner, and who was expected to testify in future legal proceedings that had not yet been convened when the effort to impede him in the exercise of his duty to testify occurred, was a witness protected by 18 U.S.C. § 1503. Hunt v. United States, supra.

In this case, the Government has established that at the time of the alleged "obstruction of justice" by Vesich, Fragale was expected to testify to material facts in future legal proceedings. Specifically, the Government has shown that Fragale was cooperating with the Government and knew he would be called as a witness before a Grand Jury to testify about his narcotic sources. In addition to being specifically advised of this fact by First Assistant United States Attorney Albert Winters in November and December, 1981, Fragale had agreed to testify pursuant to the November 12, 1981 agreement between Fragale and the United States of America, which provided in pertinent part:

Mr. Fragale is presently charged in Federal Court with violation of Immigration Laws and in State Court with violations of the Narcotic Laws. The defendant agrees to be interviewed by Federal and State Law Enforcement Officers and be totally debriefed as to his knowledge of any violations of criminal law. The defendant agrees to appear before any Grand Jury or any Trial, if called, as a witness and to testify completely and truthfully.

Furthermore, the Government has shown that at the time of the alleged obstruction of justice by Vesich, it intended to bring Fragale before the December, 1981 Grand Jury in the Eastern District of Louisiana to testify about his narcotic sources, but had not issued a subpoena for his appearance because Fragale was a cooperating individual and it was the policy of the local United States Attorney's Office not to issue subpoenas to such individuals to, among other reasons, prevent the possible unintentional disclosure that a person is cooperating with the Government. Indeed, Fragale had already made undercover contacts in two separate cases before his January 6, 1982 meeting with Vesich.

Ultimately, because of the length of time involved in his undercover operations, Fragale did not testify before the December, 1981 Grand Jury, and did not testify as to his narcotic trafficking activity until October 21, 1982, before the August, 1982 Grand Jury, but the fact remains that Fragale was expected to testify before the Grand Jury at the time of the alleged obstruction of justice by Vesich.

Therefore, the failure of the government to allege or prove that Fragale was a witness or had been subpoenaed as a witness before a federal grand jury at the time of the alleged obstruction, does not support a judgment of acquittal.

With regard to defendant's ground (3), defendant correctly states that a prerequisite for conviction under § 1503 is that defendant's actions be related to a pending judicial proceeding. See, e.g., United States v. Howard, 569 F.2d 1331, 1333, n. 2, and 1336, n. 9 (5th Cir.), cert. denied 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978); United States v. Koehler, 544 F.2d 1326, 1328, n. 3 (5th Cir.1977).

This requirement of a pending judicial proceeding applies equally to prosecutions under the specific, first clause of § 1503 and under the broader, "due administration" clause. See, e.g., United States v. Howard, supra. Under the first clause of § 1503, this requirement comes into play as a necessary element of the proof that the individual corruptly influenced was a "witness" for purposes of § 1503. See United States v. Chandler, supra, and the cases cited therein. Under the last clause of § 1503, the requirement of a pending judicial proceeding comes into play as a necessary element of the proof that the "due administration of justice" was obstructed. See, e.g. United States v. Howard, supra.

There are no Fifth Circuit cases specifically reciting the standard to be applied in determining whether a pending judicial proceeding exists for the purposes of the "due administration" clause of § 1503. However, the logic of the opinions cited dictates that the standards used for purposes of the "due administration" and "witness" clauses of § 1503 be the same. Therefore, this Court relies herein on the Fifth Circuit standard under the "witness" clause of § 1503, for determining whether there is a pending judicial proceeding for the purposes of the "due administration" clause of § 1503.

Therefore, for the reasons stated in connection with defendant's ground (2) supra, the Court finds that the evidence presented by the government is sufficient to reasonably support a jury verdict that there was a pending judicial proceeding at the time of defendant's alleged obstruction of justice.²

With regard to defendant's ground (4), defendant is correct in arguing that the government must prove that he, the defendant, expected the witness to...