

                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  States Attorney,  with whom                               
Donald K.  Stern,  United  States  Attorney,  and  James  D.  Herbert,                                                                             
Assistant United States Attorney, were on brief for the United States.
Michael  F. Connolly  with whom  Francis  X. Bellotti,  Valerie B.                                                                              
Robin and Mintz, Levin, Cohn, Ferris,  Glovsky and Popeo, P.C. were on                                                                      
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.  Prior to trial, Stephen Rakes  moved

to  suppress conversations between  him and his  former wife,

Julie Rakes, and between him and his one-time  attorney, John

P.  Sullivan.  The district  court granted the motion, except

for one conversation, and the government now appeals.

     The  facts are readily  gleaned from testimony  taken by

Judge  Lindsay in  an  in  camera hearing  on  the motion  to                                             

suppress.1  Stephen and Julie  Rakes were married in 1978 and

engaged in various business ventures together.  In 1983, with

the help  of their attorney, John Sullivan,  the Rakes couple

established  a  corporation  named Stippo's,  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  the Rakeses were  underpricing competitors.

Then, in  early January  1994, the  government believes  that

James "Whitey"  Bulger visited  Stephen Rakes  at home  while

Julie was at the liquor  store and threatened to kill Stephen

                                                    

     1The hearing  was conducted  in camera  to avoid  public                                                       
disclosure of the  assertedly privileged  materials, and  the
briefs  in this  court  have  been filed  under  seal.   This
opinion  was filed  under seal  and the  parties, having  now
reviewed it, have no objection to its publication.

                             -2-                                         -2-

unless Bulger  or his  associates were made  partners in  the

liquor  store.   By May  1984, again  with the  assistance of

Sullivan, the  Rakeses  had transferred  Stippo's,  Inc.,  to

another   individual,  whom   the  government   believes  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  he had sold

the store to make a profit and  because it was too much work,

and said that no one had threatened him to make him  sell the

store.

     In September 1995, Stephen  Rakes gave similar testimony

before   a  second  federal  grand  jury.    Thereafter,  the

government  called Julie Rakes  and Sullivan before  the same

grand jury.   Although Sullivan initially refused  to discuss

his   conversations  with   Stephen  and  Julie   Rakes,  the

government secured  an order  from district judge  compelling

Sullivan's testimony.  Stephen Rakes was not advised that the

proceedings to compel Sullivan's testimony were under way.

     In  May 1996,  the grand  jury  indicted Stephen  Rakes,

charging him with  five counts of perjury based  on his grand

jury  testimony,  18  U.S.C.     1623,  and   two  counts  of

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obstruction of  justice, 18  U.S.C.    1503; the  obstruction

counts  charged that  Rakes' grand  jury  testimony had  been

false and intended to obstruct  the grand jury.  Three counts

of the indictment were later dismissed as multiplicitious but

four others remain pending.

     Asserting   the  privilege   for  confidential   marital

communications, Stephen  Rakes moved to suppress  evidence of

conversations in December  1983 and January 1984  between him

and Julie Rakes  concerning alleged threats  and the sale  of

Stippo's.  He also asked the court to suppress, on grounds of

attorney-client  privilege,  conversations   between  Stephen

Rakes  or both  Rakeses and Sullivan  concerning the  sale of

Stippo's, Inc.  and the  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:  it  denied the motion as  to one

conversation between  Stephen  and  Julie  Rakes,  apparently

because it took place in the presence  of a third party.  The

district court identified the materials to be suppressed but,

presumably  because of the  risk of disclosure  of privileged

information,  did  not  write a  supporting  opinion  or make

separate findings of fact.   The government then brought this

interlocutory appeal.  See 18 U.S.C.   3731.                                      

     We  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  the attorney-client

and marital communications  privileges are  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   brief   version    of   either   the   marital

communications  or  attorney-client  privilege  can  be  both

complete and accurate.   But, broadly  stated and subject  to

exceptions, the  former  privilege permits  an individual  to

refuse to testify,  and to prevent a spouse  or former spouse

from testifying, as to any confidential communication made by

the individual  to the  spouse during  their marriage.2   The

latter  privilege, again  with  exceptions,  protects at  the

client's  behest confidential  communications between  lawyer

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

     The communications  suppressed  by  the  district  court

between Stephen and  Julie Rakes were made in  the absence of

third parties and  in the course of their  marriage; that the

                                                    

     2See, e.g.,  Unif. R. Evid.  504(a); J. Strong,  et al.,                           
McCormick on Evidence    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.  502(b); McCormick    87-97;  Upjohn Co.                                                                         
v. United States,  449 U.S. 383, 389-90 (1981); United States                                                                         
v.  United Shoe  Machinery Corp.,  89 F.  Supp. 357,  358 (D.                                            
Mass. 1950) (Wyzanski, J.).

                             -5-                                         -5-

Rakeses  later divorced  is  irrelevant,  and the  government

properly makes  nothing of  the possibility  that one  of the

conversations  occurred  in  the  presence  of  their  infant

children.    Similarly,  Stephen Rakes'  communications  with

Sullivan  were   made  during   the   course  of   Sullivan's

representation of Rakes  and were related to  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.  Further, if Stephen Rakes  had

been  threatened, as  the government  alleges,  he had  ample

reason over  and above any  ordinary interest  in privacy  to

want them to be kept confidential.  We reserve for discussion

below  the  government's  claim  that  later  disclosures  by                                                        

Stephen Rakes undermine the claim of confidentiality.

     The government suggests that some general rule  deprives

spousal  conversations of  the privilege  if  they relate  to

financial matters;  needless to  say, it  does not  make this

claim  in  respect  to the  attorney-client  privilege.   The

marital communications privilege contains no such limitation:

the cases  say,  at  most,  that a  discussion  of  financial

matters between  husband and wife  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  with the government's  suggestion that

communications were  not privileged insofar  as Stephen Rakes

may have been relating to his wife events that occurred prior

to  the  communication.   It  is  true  that "communications"

privileges typically prevent  inquiry into communications and

not into the underlying  facts, Upjohn Co. v. United  States,                                                                        

449 U.S. 383,  395-96 (1981),  although the  subject is  more

complicated than  this  generalization suggests.4    But  the

district  court's   suppression   order   was   directed   to

communications, not to facts, and that is enough for  present

purposes.

     This brings  us to the  main thrust of  the government's

argument, namely, that  "[t]he suppressed communications  are

not  privileged  because  they  occurred  during  an  ongoing

extortion   scheme."    A   crime  of  extortion,   says  the

government,  extends  from  the  initial  threat  through the

actual  obtaining  of   the  property.    See  18   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

                                                    

     4Where  an attorney knows  facts only because  they were
confidentially  communicated by  the  client, the  government
cannot  circumvent the privilege by asking the attorney about
"the facts."   See Upjohn, 449  U.S. at 395.   The same  rule                                     
applies to the  marital communications privilege.   Blau, 340                                                                    
U.S. at 333.

                             -7-                                         -7-

extended  from  the  first alleged  threat  in  December 1983

through the completion of the  property transfer in May 1984,

a period embracing all but one of the communications that the

government seeks to use.

     No   general   rule   withdraws   the   privilege   from

communications that occur  in the same time frame as criminal

act conduct.  See In re Grand Jury Subpoenas Duces Tecum, 798                                                                    

F.2d 32, 34 (2d Cir. 1986).  But both the privileges involved

here  are  subject  to some  type  of  crime-fraud exception.

Thus,  the attorney-client privilege  is forfeited inter alia                                                                         

where the client sought the  services of the lawyer to enable

or  aid  the  client  to  commit  what  the  client  knew  or

reasonably  should have known to be a  crime or fraud.  E.g.,                                                                        

Unif. R. Evid. 502(d)(1); McCormick, supra,   95.                                                      

     The  counterpart  limitation  in  the  case  of  marital

communications is not necessarily identical;  it is expressed

in somewhat  different  terms  in  different  jurisdictions.5

However, we  will assume for  present purposes--favorably  to

the government--that the privilege for marital communications

                                                    

     5See, e.g., Unif.  R. Evid. 504(c); McCormick,  supra,                                                                        
78.   In federal courts, the marital communications privilege
typically is forfeited  only where both husband  and wife are
jointly engaged in criminal  activity or where the  victim is
the other  spouse or  some other family  member.   See United                                                                         
States v.  Picciandra, 788  F.2d 39, 43-44  (1st Cir.  1986);                                 
United  States v.  Mavroules, 813  F. Supp.  115,  119-20 (D.                                        
Mass. 1993).

                             -8-                                         -8-

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  Rakes

were the "victims" of an extortion scheme.  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,  and                                                

while Stephen was persuading Julie to do so."  This, says the

government, entails loss of the privilege.

     Yet,  on the  government's own  version  of events,  the

Rakeses  were  not  participants  in  the  extortion  in  any

capacity  other  than  that  of victim.    The  Rakeses  were

participants  only in  the very  specialized  sense that  the

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

under   threat  of  violence,   or  the  victim   of  a  rape

"participates"  by   offering  no  further   resistance  when

resistance appears futile or dangerous.  This is not the kind

of  participation in an  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  venture, e.g.,                                                                        

United  States  v. Parker,  834  F.2d 408,  412-13  (4th Cir.                                     

1987),  or a wife  knowingly assisted  a husband  in criminal

                             -9-                                         -9-

conduct,  e.g., United States v. Picciandra, 788 F.2d 39, 43-                                                       

44 (1st Cir.  1986).  Here, even the  government shrinks from

flatly  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  the threat against him.   It is enough  to say

that  the fragments  of evidence  cited do not  even approach

misprision  of  felony  or accessory  after  the  fact.   The

government's theory would  make a criminal of anyone  who, as

the  victim of  a  crime  or faced  with  a criminal  threat,

resisted a spousal suggestion that the police be called.

     The  government's underlying  notion  may  be  that  the

privilege   is  lost  for  any  communication  that  plays  a

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

to  the  communication are  entirely  innocent  and otherwise

protected  by the privilege.  On  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.  It

is not an  attractive picture, and it is hard to believe that

the suggestion is seriously intended.

     In all events, it is not the law.  Under the crime-fraud

exception, we think  that it takes wrongful complicity by the

privilege  holder, not  innocent  or involuntary  action,  to

                             -10-                                         -10-

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  remaining  argument  is that  Stephen

Rakes himself disclosed  the alleged threats to  others, most

importantly,   to  one  Brian   Burke.    According   to  the

government,  Rakes had promised to pay Burke for construction

and  related  work  on  the  liquor  store  and  owed  him  a

substantial sum.   When in early 1984 Burke  called about the

debt, the  government says that Rakes told  Burke in dramatic

terms that  he (Rakes) had  been forced out of  the business.

This, says  the government,  shows that  the information  was

never  confidential, and, in any event, the disclosure waived

the privilege.    

     The  disclosure  to  Burke is  weak,  and  to  us wholly

unpersuasive, evidence that the  communications suppressed by

the  district court were  never intended to  be confidential.

For reasons already indicated, there is every reason to think

Stephen  Rakes'  conversations  with  Julie  Rakes  and  with

Sullivan  were  intended  to be  confidential.    The limited

disclosure  to Burke, however dramatic, was obviously made to

ward off  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   a

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

681,  684-85 (1st Cir.  1997).   The restriction  is directed

against  selective disclosures  by  reserving protection  for

only those communications  that the privilege holder  himself

is prepared  to keep  confidential.  SEC  v. Lavin,  111 F.3d                                                              

921, 929, 933  (D.C. Cir. 1997).   The restriction is one  of

public  policy,  and  applies  regardless  of  the  privilege

holder's subjective intent.  MIT, 129 F.3d at 684.                                            

     As already  noted, the privileged communication  and the

facts recounted within  it are two different things.  Upjohn,                                                                        

449 U.S.  at 395.  Thus, a client  does not normally lose the

privilege  as  to  communications  with  his attorney  merely

because he testifies  at trial to  the same events  discussed

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

538-39, n.10 (5th  Cir. 1982).  Here, there  is no suggestion

that Stephen Rakes  ever told Burke or anyone  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  Cir. 1995), but  in peculiar circumstances:

the information  had been collected  by the attorney  for the

client and  then voluntarily disclosed in full  by the client

to   the  government;  the   issue  was  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  comparable.    The

communications by Stephen Rakes to his  wife and his attorney

apparently  contained much that  was not disclosed  to Burke,

whom the government  can always call as  a witness.  Nor,  in

contrast  to Billmyer,  is Rakes making  a disclosure  to the                                 

government  while  trying  to withhold  the  information from

defendants  whom  the  government  is  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."   There is, of  course, no

such privilege.    A  defense  of  "duress"  exists  but  its

requirements are  stringent.  See  1 W. Lafave and  A. Scott,                                             

Substantive Criminal  Law,   5.3  (1986).  In any  event, the                                     

duress defense has not been  invoked in this appeal and forms

no part of  our decision.  We simply  agree with the district

court  that  the  suppressed  communications were  originally

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

as claimed by the government.

     The  government's arguments  are, as  is  usual in  this

district, presented  with skill,  and its  zeal to  pursue an

alleged extortionist is  understandable.  But skill  and zeal

are to  be harnessed by  common sense.   The notion  that the

Rakeses could properly  be treated as participating  in their

own  extortion is  Orwellian.   An  appeal for  which such  a

proposition had to  be the linchpin ought never  to have been

brought.

     Affirmed.                          

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