




2015 VT 39







State v. Fucci, Jr. (2013-1510
 
2015 VT 39
 
[Filed 13-Feb-2015]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 



2015 VT 39



 



No. 2013-151



 



State of Vermont


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Windsor Unit,




 


Criminal Division




 


 




Louis Fucci, Jr.


September Term, 2014




 


 




 


 




Robert
  P. Gerety, Jr., J.




 



Michael R. Kainen, Windsor County State’s Attorney, and
Robert Liu, Law Clerk (On the Brief),
  White River Junction, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier,
  for Defendant-Appellant.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund and Robinson, JJ.,
and Maley, Supr. J., 
                     Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   Defendant pled guilty to two counts of endeavoring
to procure or hire another person to commit a felony—first-degree murder—and
one count of obstruction of justice by seeking to have an opposing party in a
civil lawsuit killed.  He appeals his conviction for obstruction of justice by
challenging the validity of his guilty plea.  He contends that: his conviction is
void because the State failed to establish jurisdiction over the matter; the
plea was unsupported by a factual basis; and, without establishing that he had
the “requisite evil purpose” to obstruct the due administration of justice, his
plea was involuntary.  We affirm defendant’s conviction.
¶ 2.            
The relevant alleged fact underlying the State’s prosecution is this: Defendant
tried to hire someone to kill an opposing party in a civil lawsuit, but the
hiree turned out to be a confidential informant for law enforcement.  The State
originally charged defendant, in September 2011, with two counts of attempted first-degree
murder and two counts of inciting to felony.  The State amended its information
twice[1]
before finally charging defendant with one count of obstruction of justice, in
violation of 13 V.S.A. § 3015, and two counts of inciting to felony, in
violation of 13 V.S.A. § 7.  
¶ 3.            
On March 15, 2013, defendant was arraigned on the new obstruction of
justice charge and pled guilty.[2]
 The court ordered a sentence of ten-to-fifteen years imprisonment.  Although
defendant did not object to the substance or form of the State’s factual basis
or the court’s plea colloquy during that hearing, defendant filed this appeal.
¶ 4.            
“A defendant who fails to object to an error during the plea colloquy
may obtain reversal only upon a showing of plain error.”  State v. Marku,
2004 VT 31, ¶ 22, 176 Vt. 607, 850 A.2d 993 (mem.) (citing State v.
Cleary, 2003 VT 9, ¶ 16, 175 Vt. 142, 824 A.2d 509).  As noted,
defendant raised no objections, so we review for plain error.  On questions
regarding the scope of jurisdiction, however, our review is de novo.  In re
Russo, 2013 VT 35, ¶ 11, 193 Vt. 594, 72 A.3d 900.  
¶ 5.            
Defendant first contends that because he did not admit or agree to the
location of the charged obstruction of justice—that is, that his efforts to
hire a hit man took place within the State of Vermont—the trial court lacked
jurisdiction to accept his plea and convict him.  Defendant’s argument is procedural,
not substantive—he does not contend that the court lacked jurisdiction because
the alleged crime actually occurred outside the boundaries of Vermont, but
rather that the absence of the alleged crime’s location from the plea-colloquy
record deprived the court of jurisdiction.  Defendant’s analysis is flawed.  
¶ 6.            
Vermont Rule of Criminal Procedure 11 requires that the plea-colloquy
record show “that the elements of each offense were explained to the defendant
and that a factual basis for each element was admitted.”  In re Kasper, 145
Vt. 117, 120, 483 A.2d 608, 610 (1984); see also In re Stocks, 2014 VT
27, ¶¶ 14-15, ___ Vt. ___, 94 A.3d 1143 (explaining the requirements of
Rule 11(f)).  The location of the alleged act, however, while essential to
jurisdiction, is not an element of the crime of obstruction of justice.  See 13
V.S.A. § 3015 (punishing “[w]hoever corruptly . . . endeavors
to obstruct the due administration of justice”); cf. State v. Williams, 137
Vt. 360, 362, 406 A.2d 375, 376 (1979) (rejecting argument that inconsistency
between State’s formal charge and State’s proof as to date of alleged act
rendered conviction void, and noting that “time of commission is not an
essential element calling for precise proof as pleaded”).  The strictures of Rule 11(f)
therefore do not apply to geographic location, and defendant’s procedural
challenge fails. 
¶ 7.            
Defendant next argues that his plea is invalid because the factual basis
of the plea colloquy failed to establish that he committed the overt act
required for a violation of the obstruction-of-justice statute.  “The ‘factual
basis’ requirement reinforces the goal of ensuring knowing and voluntary
pleas.”  Stocks, 2014 VT 27, ¶ 13.  It does so by ensuring that
“even a plea entered voluntarily without force or threat, and with full
understanding of the elements of the charge, the potential penalties, and
rights waived, is warranted by underlying facts.”  Id. (citations
omitted).  While no “particular formula [exists] for determining that there is
a factual basis for the plea,” id. ¶ 15, our cases interpret Rule
11(f) to “ ‘require that the defendant admit to and possess an understanding of
the facts as they relate to the law for all elements of the charge’ ” to
which the defendant has pled guilty.  Id. ¶ 14 (emphasis omitted) (quoting
State v. Yates, 169 Vt. 20, 24, 726 A.2d 483, 486 (1999)).  
¶ 8.            
The omnibus provision of 13 V.S.A. § 3015 requires proof that a
defendant “endeavor[ed] to obstruct . . .  the due
administration of justice.”  The term “endeavored” does not require success in
a defendant’s attempt to obstruct justice; a mere effort satisfies that
element.  State v. Wiley, 2007 VT 13, ¶ 15, 181 Vt. 300, 917 A.2d
501 (citing United States v. Aguilar, 515 U.S. 593, 599 (1995)).  Defendant
reads Wiley as holding that an “endeavor” is synonymous with an attempt. 
While we interchanged “endeavor” and either “attempt” or “attempted” a few
times in Wiley, we discussed nothing about the actus reus of attempt;
thus, we used “attempt” for its ordinary connotation, rather than its special
legal meaning, as defined in 13 V.S.A. § 9(a).  See id.  We
acknowledge that other courts have held that the effort necessary to fulfill
the actus reus element of the federal obstruction-of-justice statute is less than
that for attempt, M. Harrington & B. Schiffelbein, Obstruction of
Justice, 51 Am. Crim. L. Rev. 1477, 1486 (Fall 2014) (citing cases), but we
need not decide whether under Vermont law the steps necessary for an endeavor
are the same as for an attempt because defendant’s admitted acts would satisfy either
standard.  
¶ 9.            
The prosecutor recited the following facts, which defendant agreed were
true, at the plea colloquy: 
In
the summer of 2011 a civil law suit was pending entitled B.W., et al. v. Louis
Fucci, Jr., et al.  Mr. Fucci was a civil defendant in that action.  He
believed he had reached an agreement with another person to have the civil
plaintiff, B.W., killed, and in so doing he sought to knowingly, wrongfully,
and unlawfully obstruct the due administration of justice.  
 
See Stocks, 2014 VT 27,
¶ 15 (“A recital of the facts by the prosecutor together with a statement
by the defendant confirming their accuracy . . . satisf[ies]
[Rule 11(f)].”).  Defendant contends that the sole operative verb in that
sentence is “believed,” which indicates only a state of mind, not the overt act
of “endeavoring.”  This argument ignores the context of “believed” and a
common-sense understanding of the whole sentence.  Logic tells us that defendant
could not have believed he had reached an agreement without having endeavored
to reach that agreement.  In that context, “believed” describes defendant’s
assessment of the success of his endeavor.  If the State proved at trial that
defendant believed he had hired someone to kill the opposing party in a civil
lawsuit, a reasonable jury could find beyond a reasonable doubt that defendant
had thereby made a “mere” effort to obstruct the due administration of justice.
 We are satisfied that the court fulfilled its duty under Rule 11(f) to ensure
that defendant agreed to a sufficient factual basis for the “endeavor” element.
¶ 10.        
Defendant lastly argues that his plea was involuntary because he
admitted to no facts establishing the requisite mens rea for obstruction of
justice.  The phrase “corruptly endeavor” is the culpable state of mind for
this offense.  See Wiley, 2007 VT 13, ¶ 15 (citing Aguilar,
515 U.S. at 599).  This Court has not interpreted that term of the statute,[3]
but we save that surely substantial analysis for a case that more squarely
presents the issue.
¶ 11.        
For purposes of this case, we look to, but do not adopt, federal precedent
interpreting 18 U.S.C. § 1503,[4]
the statute on which Vermont’s obstruction-of-justice law is based.  See Wiley,
2007 VT 13, ¶ 15 (relying on case law interpreting the actus reus element
of the “nearly identical” omnibus provision of the federal
obstruction-of-justice statute).  The U.S. Supreme Court held long ago in Pettibone
v. United States, 148 U.S. 197 (1893), that the original omnibus provision
of the obstruction-of-justice statute,[5]
which has remained largely unchanged, required (1) knowledge or notice of an
administration of justice; and (2) the “specific intent to violate the statute”
by interfering with that administration.  Id. at 207.  In Aguilar,
the Supreme Court elaborated on these holdings of Pettibone by establishing
that the defendant must have “knowledge that his actions are likely to affect
[a] judicial proceeding” and that his endeavor must have the “natural and
probable effect” of interfering with that proceeding.  515 U.S. at 599
(quotation omitted).  
¶ 12.        
Recognizing that evidence of intent under the obstruction of justice
statute is nearly always circumstantial, e.g., United States v. Blair,
661 F.3d 755, 766 (4th Cir. 2011), federal appeals courts have struggled with
how to properly interpret “corruptly endeavor.”  Some courts have held that the
mens rea element is satisfied where the government shows that the defendant’s
acts would reasonably and foreseeably have obstructed the due administration of
justice.  See, e.g., id.  Others have required the prosecution to show
that the defendant had a corrupt or evil motive.  See, e.g., United States
v. Brady, 168 F.3d 574, 578 (1st Cir. 1999) (“[T]o make any sense out of
the statute, ‘corruptly’ needs to have some content beyond mere knowledge of
consequence.”).  We need not decide which of these approaches § 3015 commands
because under either, defendant’s admissions at the plea colloquy satisfied the
mens rea element.  
¶ 13.        
It is elementary that a defendant’s intent may be inferred from the
nature of his acts.  See, e.g., State v. Johnson, 2013 VT 116,
¶ 29, ___ Vt. ___, 90 A.3d 874 (holding victim’s two-inch laceration on
neck “sufficiently serious as to prove specific intent to kill, regardless of
what the perpetrator said at the time”).  This principle applies equally to
jury convictions and guilty pleas.  See State v. Cram, 2008 VT 55, ¶¶ 1,
9, 184 Vt. 531, 955 A.2d 528 (mem.).
¶ 14.        
The factual basis for defendant’s culpable mens rea is evident from both
the explicit language of defendant’s admitted state of mind—that “he sought to
knowingly, wrongfully, and unlawfully obstruct the due administration of
justice”—and the nature of defendant’s admitted act—that “[h]e believed he had
reached an agreement with another person to have the civil plaintiff, B.W.,
killed.”  Defendant contends that “knowingly, wrongfully, and unlawfully” do
not indicate specific intent.  While those terms may not independently express
willful behavior, their context does.  The operative verb that “knowingly,
wrongfully, and unlawfully” modify is “obstruct.”  It indirectly operates
through defendant, the subject of the sentence, by way of the auxiliary verb
“sought.”  Seeking is a deliberate, willful action.  See The American Heritage
College Dictionary 1234 (3d ed. 1993) (defining “seek” as “[t]o endeavor to
obtain or reach”).  Seeking to obstruct is endeavoring to obstruct.  Modifying
“obstruct” with the adverbs “knowingly, wrongfully, and unlawfully” bolsters,
rather than diminishes, the willfulness of defendant’s act.
¶ 15.        
To the extent the word “corruptly” adds a requirement of evil motive on
top of the specific intent to obstruct the due administration of justice, the nature
of defendant’s admitted endeavor evinces such a motive.  Seeking to have the
opposing party in a civil lawsuit killed is obviously a corrupt and evil
obstruction of justice.  If proved at trial, a reasonable jury could infer from
the nature of this act alone that defendant’s purpose was to obstruct the civil
trial proceeding, that the act would reasonably and foreseeably result in
obstruction of justice, and that his motive was not innocent, but rather
corrupt and evil.  The change-of-plea court therefore did not err in
determining that defendant admitted to a factual basis sufficient to support
the mens rea element.
Affirmed.



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 




[1] 
The reasons for which the State amended the information are not relevant to
this appeal.
 


[2] 
Prior to that hearing, defendant had pled guilty to the two inciting-to-felony
charges and he does not challenge those pleas on appeal.


[3] 
Although the State suggests in its brief that State v. McHugh, 161 Vt.
574, 635 A.2d 1200 (1993) (mem.), interpreted “corruptly endeavor” to require
specific intent, we find that reading of the case untenable.  The question
before this Court in McHugh was whether the omnibus provision of 13
V.S.A. § 3015 is overbroad in violation of the First Amendment.  While we
acknowledged the similarity between the federal and Vermont
obstruction-of-justice statutes, and we discussed federal case law interpreting
the term “corrupt,” we made no holding regarding the level of intent it
commands.  Id. at 575-76, 635 A.2d at 1201-02.
 


[4] 
The omnibus provision of the federal obstruction-of-justice statute provides:
“Whoever . . . corruptly or by threats or force, or by any
threatening letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administration of justice,
shall be punished as provided . . . .”  18 U.S.C.
§ 1503(a).
 


[5] 
The statute as it then existed punished “[e]very person
who . . . corruptly, or by threats or force, [ob]structs or
impedes, or endeavors to obstruct or impede, the due administration of justice.” 
Pettibone, 148 U.S. at 197 (quoting U.S. Rev. Stat. § 5399 (1878)).


