USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1693

UNITED STATES OF AMERICA,

Appellant,

v.

STEPHEN M. RAKES,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

____________________

Richard L. Hoffman, Assistant United

___________________
Donald K. Stern,
________________

United

States

States Attorney,

Attorney,

and

with w

James D. Herbe
________________

Assistant United States Attorney, were on brief for the United Stat
Michael F. Connolly
____________________

with whom

Francis X. Bellotti,
____________________

Valerie
_______

Robin and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were
_____
____________________________________________________
brief for appellee.

____________________

February 11, 1998

____________________

BOUDIN, Circuit Judge.

_____________

In May 1996, Stephen

Rakes was

indicted by a federal grand jury and charged with perjury and

obstruction of justice.

to

Prior to trial, Stephen Rakes

suppress conversations between

him and his

Julie Rakes, and between him and his one-time

P.

Sullivan.

The district

moved

former wife,

attorney, John

court granted the motion, except

for one conversation, and the government now appeals.

The

Judge

facts are readily

Lindsay in

suppress.1

an

gleaned from testimony

in camera hearing
__________

Stephen and Julie

on

the motion

of their attorney, John Sullivan,

established

corporation

to

Rakes were married in 1978 and

engaged in various business ventures together.

the help

taken by

named Stippo's,

In 1983, with

the Rakes couple

Inc.,

as their

jointly owned company to operate a liquor store business at a

site

on Old Colony Avenue in South Boston.

The store opened

shortly before Christmas 1983.

The

government believes that

not long

thereafter, the

Rakeses were threatened by unnamed people in South Boston who

were

angry that

Then, in

the Rakeses were

early January

James "Whitey"

1994, the

Bulger visited

Julie was at the liquor

underpricing competitors.

government believes

Stephen Rakes

that

at home

while

store and threatened to kill Stephen

____________________

1The hearing

was conducted

disclosure of the
briefs
opinion

in this

in camera
_________

assertedly privileged
court

was filed

have

been filed

under seal

and the

to avoid

materials, and
under

seal.

parties, having

reviewed it, have no objection to its publication.

-2-2-

public
the
This
now

unless Bulger

liquor

store.

Sullivan, the

another

or his

associates were made

By May

1984, again

Rakeses

individual,

with the

had transferred

whom

the

partners in

assistance of

Stippo's,

government

the

Inc.,

believes

to

was

associated with Bulger, for a fraction of what the government

says was its real value.

In

May

1991,

the government

summoned

Stephen

Rakes

before a

federal grand

jury in

Massachusetts investigating

extortion, racketeering and money laundering.

The government

questioned Rakes about the transfer of Stippo's, Inc., to the

alleged Bulger associate.

Rakes testified that

the store to make a profit and

he had sold

because it was too much work,

and said that no one had threatened him to make him

sell the

store.

In September 1995, Stephen

before

government

grand jury.

his

second

federal

Rakes gave similar testimony

grand

called Julie Rakes

jury.

Thereafter,

and Sullivan before

Although Sullivan initially refused

conversations

government secured

with

an order

Stephen

and

Julie

from district judge

the

the same

to discuss

Rakes,

the

compelling

Sullivan's testimony.

Stephen Rakes was not advised that the

proceedings to compel Sullivan's testimony were under way.

In

May 1996,

charging him with

jury

testimony,

the grand

jury

indicted Stephen

five counts of perjury based

18

U.S.C.

1623,

-3-3-

and

two

Rakes,

on his grand

counts

of

obstruction of

counts

justice, 18

charged that

U.S.C.

Rakes' grand

false and intended to obstruct

1503; the

jury

obstruction

testimony had

the grand jury.

been

Three counts

of the indictment were later dismissed as multiplicitious but

four others remain pending.

Asserting

the

privilege

communications, Stephen

Stippo's.

marital

evidence of

1983 and January 1984

between him

concerning alleged threats

and the sale

of

He also asked the court to suppress, on grounds of

attorney-client

Rakes

confidential

Rakes moved to suppress

conversations in December

and Julie Rakes

for

or both

Stippo's, Inc.

privilege,

conversations

Rakeses and Sullivan

and the

between

Stephen

concerning the

sale of

purpose of the

sale.

The district

court held four days of hearings on the motion.

In April 1997, the district court granted Stephen Rakes'

motion with

one exception:

conversation between

it

Stephen

denied the motion as

and

Julie

because it took place in the presence

Rakes,

to one

apparently

of a third party.

The

district court identified the materials to be suppressed but,

presumably

information,

because of the

did

not

write a

separate findings of fact.

interlocutory appeal.

We

risk of disclosure

supporting

of privileged

opinion

or make

The government then brought this

See 18 U.S.C.
___

3731.

will assume arguendo the relevance of the suppressed

________

conversations to the

government's prosecution.

At

the same

-4-4-

time, most of

the formal requisites for

and marital communications

privileges are

the attorney-client

clearly met;

the

government's main claim is that the privileges were waived or

forfeited.

In a federal criminal case, privileges take their

content from the common law as it may be altered from time to

time in

the light of

reason and experience.

Fed. R. Evid.

501.

No

communications

brief

or

version

of

attorney-client

either

the

privilege

can

complete and accurate.

But, broadly

exceptions, the

privilege permits

former

refuse to testify,

marital

be

both

stated and subject

an individual

and to prevent a spouse

to

to

or former spouse

from testifying, as to any confidential communication made by

the individual

latter

client's

to the

privilege, again

spouse during

with

behest confidential

their marriage.2

exceptions,

The

protects at

communications between

the

lawyer

and client made to facilitate legal services for the client.3

The communications

between Stephen and

third parties and

suppressed

by

the

Julie Rakes were made in

in the course of their

district

court

the absence of

marriage; that the

____________________

2See, e.g.,
___ ____

Unif. R. Evid.

McCormick on Evidence
_____________________

504(a); J. Strong,

et al.,

78-86 (4th ed. 1992); Blau v. United

____
______

States, 340 U.S. 332 (1951).

______

The separate marital privilege-

-to refuse to testify against a spouse in a criminal case--is

not pertinent here.

Trammel v. United States,

_______
_____________

445 U.S. 40,

51 (1980).

3Unif. R. Evid.
v. United States,
_____________
v.

502(b); McCormick
_________

87-97;

Upjohn Co.
__________

449 U.S. 383, 389-90 (1981); United States

_____________

United Shoe Machinery Corp.,

____________________________

Mass. 1950) (Wyzanski, J.).

-5-5-

89 F.

Supp. 357,

358 (D.

Rakeses

later divorced

properly makes

conversations

children.

Sullivan

nothing of

occurred

Similarly,

were

is

made

representation of Rakes

irrelevant,

and the

the possibility

in

the

presence

Stephen Rakes'

during

the

government

that one

of

of the

their

infant

communications

course

and were related to

of

with

Sullivan's

legal services,

and no one was present except one or both of the

Rakeses and

attorney Sullivan.

Both

the

content

and

context of

the

communications

support the implicit finding by the district judge that Rakes

intended

his conversations,

with

both

his

wife

and

his

attorney, to be confidential.

been

threatened, as

reason over

Further, if Stephen Rakes

the government

and above any

ordinary interest

want them to be kept confidential.

below

the

government's

alleges,

claim

he had

had

ample

in privacy

to

We reserve for discussion

that

later
_____

disclosures

by

Stephen Rakes undermine the claim of confidentiality.

The government suggests that some general rule

spousal

conversations of

the privilege

financial matters;

needless to

claim

to the

in

respect

say, it

if

they relate

does not

attorney-client

deprives

to

make this

privilege.

The

marital communications privilege contains no such limitation:

the cases

say,

matters between

at

most,

that a

husband and wife

discussion

of

financial

may not be intended

to be

confidential.

E.g., In re Witness Before Grand Jury, 791

____ __________________________________

-6-6-

F.2d

234, 239 (2d

Cir. 1986).

In this case,

however, the

subjectwas manifestlysensitive,albeit notforthe usualreasons.

Nor

do we agree

communications were

with the government's

not privileged insofar

suggestion that

as Stephen Rakes

may have been relating to his wife events that occurred prior

to

the

communication.

It

is

privileges typically prevent

not into the underlying

449 U.S. 383,

district

this

court's

that "communications"

inquiry into communications and

facts, Upjohn Co. v. United States,

__________
______________

395-96 (1981),

complicated than

true

although the

subject is

generalization suggests.4

suppression

order

was

more

But

the

directed

to

communications, not to facts, and that is enough for

present

purposes.

This brings

us to the

argument, namely, that

not

privileged

extortion

the government's

"[t]he suppressed communications

because

scheme."

main thrust of

they

occurred

crime

of

during

extortion,

an

are

ongoing

says

the

government,

actual

extends

obtaining

of

from

the

the

initial

property.

threat

See
___

18

through the

U.S.C.

1951(b)(2); United States v. Bucci, 839 F.2d 825, 829-30 (1st

_____________
_____

Cir.

1988).

Here,

the

government

says

that

the crime

facts only because

they were

____________________

4Where

an attorney knows

confidentially
cannot

communicated by

the

client, the

government

circumvent the privilege by asking the attorney about

"the facts."
applies to the

See Upjohn, 449

___ ______

U.S. at 395.

The same

marital communications privilege.

U.S. at 333.

-7-7-

rule

Blau, 340
____

extended

from

the

first alleged

through the completion of the

threat

in

December 1983

property transfer in May 1984,

a period embracing all but one of the communications that the

government seeks to use.

No

general

rule

communications that occur

act conduct.

withdraws

the

privilege

from

in the same time frame as criminal

See In re Grand Jury Subpoenas Duces Tecum, 798

___ ______________________________________

F.2d 32, 34 (2d Cir. 1986).

But both the privileges involved

here

type

are

subject

to some

of

crime-fraud exception.

Thus,

the attorney-client privilege

where the client sought the

or

aid

the

reasonably

client

to

is forfeited inter alia

__________

services of the lawyer to enable

commit

what

should have known to be a

the

counterpart

limitation

in

knew

crime or fraud.

Unif. R. Evid. 502(d)(1); McCormick, supra,

_________ _____

The

client

the

or

E.g.,
____

95.

case

of

marital

communications is not necessarily identical;

it is expressed

in somewhat

different

jurisdictions.5

However, we

will assume for

terms

in

different

present purposes--favorably

to

the government--that the privilege for marital communications

____________________

5See, e.g., Unif.

___ ____
78.

R. Evid. 504(c); McCormick,

_________

supra,
_____

In federal courts, the marital communications privilege

typically is forfeited

only where both husband

jointly engaged in criminal

the other

spouse or

States v.
______

Picciandra, 788
__________

United States v.
______________

and wife are

activity or where the

some other family

member.

F.2d 39, 43-44

Mavroules, 813
_________

Mass. 1993).

-8-8-

F. Supp.

victim is
See United
___ ______

(1st Cir.
115,

1986);

119-20 (D.

would be lost to Stephen

Rakes if he made the communications

in question to Julie for the purpose of carrying out a crime.

The government

concedes

that Stephen

and Julie

were the "victims" of an extortion scheme.

Rakes

But to invoke the

crime-fraud exception, the government also says (the emphasis

is

ours) that "the communications suppressed by the District

Court

occurred

while

the Rakeses were participating in

_____________________________________

carrying out the [extortion] scheme and covering it up,

____________________________________

while Stephen was persuading Julie to do so."

and

This, says the

government, entails loss of the privilege.

Yet,

Rakeses

capacity

on the

were

other

government's own

not

participants

than

that

in

version

the

of victim.

of events,

extortion

The

in

Rakeses

the

any

were

participants

only in

the very

specialized

sense that

the

victim of a robbery "participates" by handing over his wallet

under

threat

of

violence,

"participates"

by

offering

or

no

the

victim

further

resistance appears futile or dangerous.

of

participation in an

of

rape

resistance

when

This is not the kind

offense that, in

our view, vitiates

the privilege.

It is

no accident

that

the government's

case law

is

remote from the present facts and consists of cases where one

spouse enlisted a second spouse in a criminal

United States
______________

1987),

v. Parker,
______

or a wife

834

F.2d 408,

knowingly assisted

venture, e.g.,
____

412-13

a husband

(4th Cir.

in criminal

-9-9-

conduct,

e.g., United States v. Picciandra, 788 F.2d 39, 43____ _____________

__________

44 (1st Cir.

flatly

1986).

Here, even the

government shrinks from

asserting that the Rakeses were criminally liable for

__________

extortion.

We have

considered the government's

further suggestion

that Stephen Rakes engaged in misconduct by inducing his wife

not to report

that

the threat against him.

the fragments

misprision

of

of evidence

felony

the

victim of

cited do not

or accessory

government's theory would

crime

It is enough

after

even approach

the

fact.

make a criminal of anyone

or faced

with

to say

a criminal

The

who, as

threat,

resisted a spousal suggestion that the police be called.

The

privilege

government's underlying

is

lost

for

any

notion

may

communication

be

that

that

plays

the

functional role in a crime--regardless of whether the parties

to

the

protected

communication are

by the privilege.

entirely

On

innocent

and otherwise

this view, the parents of a

kidnapped child could be compelled to testify after the event

about their intimate conversations with each other concerning

the kidnapping and possible payment of a demanded ransom.

is not an

It

attractive picture, and it is hard to believe that

the suggestion is seriously intended.

In all events, it is not the law.

exception, we think

privilege

Under the crime-fraud

that it takes wrongful complicity by the

holder, not

innocent

-10-10-

or involuntary

action,

to

forfeit the privilege.

This is so even though, as with

many

applications of privilege, law enforcement may be hampered in

the interest of

other values.

The victims

of kidnapping or

extortion have problems enough; loss of otherwise

applicable

privileges is not part of the package.

The

government's

Rakes himself disclosed

importantly,

government,

and

to

argument

is that

the alleged threats to

Brian

Burke.

Stephen

others, most

According

to

the

Rakes had promised to pay Burke for construction

related

work

substantial sum.

debt, the

one

remaining

on

the

liquor

store

When in early 1984 Burke

government says that Rakes told

and

owed

him

called about the

Burke in dramatic

terms that

he (Rakes) had

This, says

the government,

never

been forced out of

shows that

the business.

the information

was

confidential, and, in any event, the disclosure waived

the privilege.

The

disclosure

to

Burke is

unpersuasive, evidence that the

the

district court were

weak,

and

to

us wholly

communications suppressed by

never intended to

be confidential.

For reasons already indicated, there is every reason to think

Stephen

Rakes'

Sullivan

were

disclosure

ward off

conversations

intended

to be

with

Julie

Rakes

confidential.

and

with

The limited

to Burke, however dramatic, was obviously made to

a debt

collection effort

and not because

Stephen

-11-11-

Rakes had any interest in broadcasting information that might

endanger his life.

The

waiver

issue

is

more

complicated.

Ordinarily,

deliberate disclosure of a privileged communication, where no

privilege

protects

this

further

disclosure,

waives

communications privilege.

681,

684-85 (1st Cir.

against

1997).

The restriction

selective disclosures

only those communications

is prepared

to keep

921, 929, 933

public

See United States v. MIT, 129 F.3d

___ _____________
___

and

confidential.

applies

holder's subjective intent.

As already

at 395.

as

SEC
___

v. Lavin,
_____

111 F.3d

The restriction is one

regardless

of

the

to

for

himself

of

privilege

MIT, 129 F.3d at 684.

___

noted, the privileged communication

facts recounted within

privilege

reserving protection

that the privilege holder

(D.C. Cir. 1997).

policy,

449 U.S.

by

is directed

and the

it are two different things.

Upjohn,
______

Thus, a client

does not normally lose the

communications

with

because he testifies

at trial to

his attorney

the same events

merely

discussed

with his lawyer.

United States v. El Paso Co., 682 F.2d 530,

_____________
___________

538-39, n.10 (5th

that Stephen Rakes

Cir. 1982).

Here, there

ever told Burke or anyone

is no suggestion

else about his

communications with Julie or with attorney Sullivan.

______________

Nevertheless, we

agree that (on

a theory of

waiver) a

disclosure of information might be so complete as to defeat a

claim of privilege.

We so held in United States v. Billmyer,

_____________
________

-12-12-

57

F.3d 31 (1st

the information

client and

to

the

Cir. 1995), but

in peculiar circumstances:

had been collected

by the attorney

then voluntarily disclosed in full

government;

the

issue

was

for the

by the client

whether

this

same

information, already possessed by the government, should also

be made available

to the third

parties whom the

government

was prosecuting.

The

present case

is

not

remotely

communications by Stephen Rakes to his

apparently

contained much that

comparable.

The

wife and his attorney

was not disclosed

to Burke,

whom the government

contrast

can always call as

to Billmyer,
________

government

while

defendants

whom

is Rakes making

trying

the

a witness.

to withhold

government

is

Nor,

a disclosure

the

in

to the

information from

trying

to

prosecute.

Billmyer is the exception, and we have no trouble letting the

________

camel's nose into the tent without letting in the camel.

At

oral argument the government accused Rakes of trying

to invoke

a "victim's privilege."

such privilege.

requirements are

defense

stringent.

of

See
___

There is, of

"duress"

exists

1 W. Lafave and

its

A. Scott,

5.3

duress defense has not been

invoked in this appeal and forms

our decision.

We simply

In any

but

Substantive Criminal Law,

_________________________

no part of

(1986).

course, no

event, the

agree with the district

court

that

the

suppressed

communications were

originally

-13-13-

privileged, and that there was no later loss of the privilege

as claimed by the government.

The

government's arguments

district, presented

are, as

is

and its

zeal to

pursue an

But skill

and zeal

The notion

that the

be treated as participating

in their

with skill,

alleged extortionist is

understandable.

are to

common sense.

be harnessed by

Rakeses could properly

own

extortion is

proposition had to

brought.

Affirmed.
_________

Orwellian.

An

appeal for

be the linchpin ought never

usual in

this

which such

to have been

-14-14-