UNITED STATES of America, Appellee, v. William J. CINTOLO, Defendant, Appellant. No. 85-1615.

United States Court of Appeals, First Circuit.

Argued Feb. 3, 1987. Decided May 1, 1987.

Francis J. DiMento with whom DiMento & Sullivan, Boston, Mass., Anthony M. Traini, Leppo & Traini, Randolph, Mass., Norman S. Zalkind, Robert L. Sheketoff, Kimberly Homan, David Duncan and Zalkind, Sheketoff, Homan & Rodriquez, Boston, Mass., were on brief, for defendant, appellant.

Max D. Stern and Stern & Shapiro, on brief, for Nat. Network for the Right to Counsel, amicus curiae, and Harvey A. Silverglate, Andrew Good, and Silverglate, Gertner, Baker, Fine, Good & Mizner, Boston, Mass., on brief, for Massachusetts Ass'n of Criminal Defense Lawyers, amicus curiae.

Diane M. Kottmyer, Sp. Atty., Dept. of Justice, with whom Stephen P. Heymann and Jeremiah T. O'Sullivan, Sp. Attys., and Robert S. Mueller III, U.S. Atty., Boston, Mass., were on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This case deals with the manner in which one member of the criminal defense bar chose, in his own sense, to read and to act upon the bitter letter of the law. In the bargain, the case presents important questions concerning the relation of an attorney to the fabric of federal law which Congress has woven to prevent obstruction of justice.

In December 1984, a grand jury sitting in the District of Massachusetts returned an indictment against William J. Cintolo, a practicing criminal defense attorney, charging him with one count of conspiracy to obstruct justice, 18 U.S.C. §§371, 1503, and two substantive counts of obstruction of justice, 18 U.S.C. § 1503. After a lengthy trial, the jury found the defendant guilty on the conspiracy count, but not guilty on the substantive obstruction counts. Cintolo was thereafter sentenced to a prison term, the execution of which was stayed pending appeal. We affirm.

When the sufficiency of the proof is challenged on postconviction appeal in a criminal case, we necessarily view the evidence in the light most favorable to the government. Glasser v. United States,  315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Medina,  761 F.2d 12, 16 n. 3 (1st Cir.1985); United States v. Tierney,  760 F.2d 382, 384 (1st Cir.), cert. denied, ' U.S. ---------, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985); United States v. Davis,  623 F.2d 188, 195 (1st Cir.1980). Drawing all legitimate inferences which tend to support the government's case, United States v. Patterson,  644 F.2d 890, 893 (1st Cir.1981), and resolving any conflicts in the evidence against the appellant, United States v. DeLucca,  630 F.2d 294, 300 (5th Cir.1980), cert, denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981), our task is to determine whether "the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom, [are enough that] a rational trier of the facts could have found the appellant guilty beyond any reasonable doubt." Tierney, 760 F.2d at 384. See also United States v. Drougas,  748 F.2d 8, 15 (1st Cir. 1984); Dirring v. United States,  328 F.2d 512, 515 (1st Cir.), cert, denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). With that standard in mind, we proceed to survey the evidence adduced in this case.

I.

Cintolo's indictment and ultimate conviction grew out of the judicially sanctioned electronic surveillance of an apartment at 98 Prince Street in Boston's North End. These premises were used by Gennaro An-

giulo and his associates' as a headquarters and office for the operation of illegal gambling and loansharking businesses. "Loansharking" is a term of criminal art which may roughly be defined as the unlawful lending of money at usurious rates of interest, repayment being encouraged by the employment (or threatened employment) of unorthodox collection measures, involving, inter alia, the breaking of bones.

The Federal Bureau of Investigation (FBI) monitored the conversations which took place on the premises from January 19 to May 3, 1981. The surveillance was conducted primarily by means of hidden microphones clandestinely emplaced within the apartment. These devices recorded conversations between Angiulo and his confederates, including Cintolo. In addition, a concealed exterior camera surreptitiously photographed persons entering and leaving the headquarters.

What this intensive scrutiny revealed visa-vis the appellant can usefully be summarized by reference to the true bill which the grand jury returned. The indictment charged that Cintolo conspired with Angiulo and others to violate 18 U.S.C. § 1503.^{Footnote 2}

The gravamen of the accusation was that Cintolo did "corruptly endeavor to influence, obstruct and impede the due administration of justice" by befouling the proceedings of a federal grand jury investigating the criminal activities of the Angiulo gang. According to the indictment, Cintolo set out to accomplish this nefarious end through the use of his position as attorney of record for Walter LaFreniere, a witness before the grand jury, to acquire information about the ongoing investigation for Angiulo's benefit. The indictment further charged Cintolo with knowingly assisting Angiulo in his efforts to inhibit LaFreniere, after the latter had been granted immunity, from testifying truthfully before the grand jury, or from cooperating in any way with the investigation.

Tape recordings played for the jury at Cintolo's trial^{Footnote 3} established that LaFreniere and his father-in-law, Louis Venios, possessed damaging information linking various members of Angiulo's organization to illegal gambling and loansharking activities. Among other things, the evidence disclosed that both Venios and LaFreniere had been extended substantial credit to cover unpaid gambling debts, and that each had been subjected to exacting pressure from various of Angiulo's minions to remit the overdue sums. When subpoenas issued to Venios and LaFreniere indicating that the grand jury was investigating possible violations of 18 U.S.C. §§ 892-94 (making, financing, and collecting extortionate extensions of credit), Angiulo recognized the legal peril which faced him and his confreres. Notwithstanding that on March 12, 1981, after first being interviewed by FBI agent Quinn, LaFreniere appeared before the grand jury and refused to testify on fifth amendment grounds, Angiulo remonstrated with his brother, Donate: Remember, they're not sayin' this or this or that. They're saying, "Angiulo" ... "Angiulo." It might be me, you, him, him, and him, too. Nobody knows. Under RICO, no matter who ... we are, if

we're together, they'll get every ... one of us. * ' * ' * *

We've been sleepin' ___ As soon as that ' ' ' guy got that ... summons, shoulda got a kid like Cintolo and said, "You hire a ... detective and tell him to stand at that grand jury. I want to know everybody that goes in there." Following extended discussions among Angiulo and his cohorts, assessing the extent of LaPreniere's knowledge and speculating on the possible foci of the grand jury's investigation, Donate Angiulo sent LaFreniere to meet with the appellant. Shortly thereafter, the lawyer assembled with Gennaro Angiulo and others'not including LaFreniere'to discuss the sweep of the grand jury inquiry and Cintolo's newfound "client." At this session, Angiulo told Cintolo that "about three and a half, four weeks ago, ... these guys should have gotten you and told you what I wanted." Angiulo explained that LaFreniere had been delivering payments to him on behalf of Venios, and that LaFreniere's name appeared on a "cuff sheet," i.e., a written list kept to show amounts of borrowings and identities of borrowers. (The cuff sheet in question related to an illegal "barbooth game" operated by Angiulo's son, Jason.) Angiulo then told Cintolo the questions which had been propounded to Venios before the grand jury. These questions concerned, inter alia, whether Venios had ever "okay[ed] Walter LaFreniere for money with someone or anyone on the shylock." (In the vernacular, "shylock" and "loanshark" are roughly synonymous terms.) Venios's discretion and loyalty had been tested over time, and Angiulo appeared to have considerable confidence in him. Yet, Angiulo was plainly apprehensive over the family's potential exposure should LaFreniere fail to "stand up," i.e., to go to jail rather than to testify truthfully before the grand jury. Angiulo mused, "why is this worrying me? This kid owes money on the shark.... [H]e's gotta be protected. This kid should never have gone to the grand jury by himself." The appellant immediately reassured Angiulo. Cintolo told him that he had already "got out of" LaFreniere a list of the questions asked both in the FBI interview and in the grand jury. Cintolo then recounted these questions and LaFreniere's responses thereto for Angiulo's benefit. The conversation concluded with Angiulo instructing the appellant to call LaFreniere in and size him up. Angiulo told Cintolo: "I got a decision to make. I want to have it all in front of me. Louis I can believe. This kid? Double talks." On March 19, 1981, Wendy Collins, a federal prosecutor, notified LaFreniere to report to the grand jury the following Thursday. That evening, Cintolo spoke with Angiulo: Angiulo: You going to explain to him that you feel that he's gonna get immunity? There's no other way out of it, is there? Huh? Cintolo: No. I, I'll explain it to him.

Figured somebody else might want to talk to him first ____ Angiulo: His father-in-law says already that as far as this kid is concerned, one thing you can say he's a ... man. If he's got time to do, he'll do it. But I don't think they figure on immunity.

You understand? They're not that ... smart. Did we find out anything about this grand jury? Cintolo: Nothing yet.

Angiulo: I would say you call him in, have a good talk, and give me a reaction.

Cintolo: Yeah.

Angiulo: So that this kid understands that he might just go and do eighteen ... months.

Later that evening, Angiulo conferred with two of his henchmen, Richard Gambale and Peter "Doc" Limone, soliciting their views as to whether LaFreniere would "stand up." Apparently uneasy at what he heard, Angiulo ordered them to kill LaFreniere: Tell him to take a ride, Okay? Went somewhere, the kid will just say to you, get out of the car and you stomp him.

Bing! You hit him in the ... head and leave him.... Meet him tonight.... Just hit him in the ... head and stab him, okay. The jeopardy is just a little too much for me. FBI agents monitoring the electronic surveillance equipment overheard Angiulo hand down this death sentence. They moved immediately to warn the intended victim. LaFreniere acknowledged that he had been contacted and was scheduled to meet with "someone" later that day. He refused to disclose the identity of the person who had made the overture, but Gambale subsequently revealed himself to the government's electronic ear as the mystery caller, informing Angiulo that LaFreniere had resisted his suggestion that they meet "for a drink." On March 20, Angiulo was told that LaFreniere had been attempting to reach Cintolo. Angiulo advised the lawyer that LaFreniere had been tipped about the "contract" which had been placed on his life: [T]he Feds called him and said to him, "we got an informant in the North End.

He just informed us that you have been placed on the hit list down there Words to that effect.

Cintolo's only response to this grisly piece of news was to mention calmly that he had instructed LaFreniere to talk with no one, and to refer all calls to him. Angiulo continued: They, supposedly, they told him, "look, what we're telling you, don't repeat it, 'cause you'll blow the cover of the guy we got down there talking to these people who knows what it's all about." Very, very interesting. Because, nowhere along the line did anyone talk about handling it. More important than that, if someone did talk about it, though ... no way would they talk where it would be, aah, susceptible to anyone excepting individuals that would be interested in it to begin with.

This particular conversation concluded with Angiulo instructing Cintolo to meet with LaFreniere again and "to evaluate [the situation] very carefully." There followed a series of discussions at the apartment in which Angiulo voiced grave (and mounting) concern over his organization's vulnerability vis-a-vis LaFreniere. The recurring theme of each conversation, significantly, was that LaFreniere be coerced into "standing up"'to serve an eighteen month sentence for contempt' rather than to accept immunity gracefully and testify freely before the grand jury. Angiulo ordered that pressure of divers kinds be brought to bear. At one juncture, he suggested that LaFreniere be told: Hey you, you answer these ... questions you're gonna get yourself in trouble, you're gonna get everybody in trouble.

Do yourself a ... favor.... Go to the can until we find out a little more about this ... thing. At another point, Angiulo instructed William "Skinny" Kazonis, another crony, that he was not to allow LaFreniere to tell the truth under any circumstances: He's gotta be taken out and told ... he's not answering ___ First, we're gonna try to find out, to know a little more than what they found. Second, it's your ... responsibility to make sure this kid keeps _ " his ... mouth shut.... Much the same sentiments were communicated to Venios: Angiulo: He's got immunity. Venios: Yah.

Angiulo: In plain English, he either answers or he's going to jail.

Venios: __ to jail, yah.

Angiulo: We're all set up for him? Venios: Yah. During this same meeting, Angiulo explained that his own son, Jason, was in an equivalent position. "He can answer until they ask him the $64 question, which is the question that will get somebody in trouble. After that, just pack it in and go to the can." Angiulo repeatedly reminded Venios of the jeopardy which any cooperation by LaFreniere with the grand jury would pose, and for good measure added a thinly-veiled threat: If this kid has got the smarts, I'm gonna tell him to go in and answer some of these questions. Then Billy will defend

him for perjury. What ... is the difference whether he does eighteen for the grand jury or he gets three years for perjury? Angiulo later told the appellant of Venios's continued assurances that LaFreniere would "stand up." According to Angiulo, Venios had been ordered to remind his sonin-law that this was no avuncular request, but a command from the organization: "You got to tell this kid that we said it, not you. Us. No guy will go to the can here for any reason." So, Angiulo indicated, Cintolo's "client" fully appreciated the personal risk he would run by cooperating with the grand jury. In the course of the conversation, Angiulo remarked to Kazonis, "Drink up, Skinny, you might go away tomorrow ... obstructing justice. Right, Billy?" The following exchange then took place: Gintolo: ___ And I went over that with him very, very carefully. That the maximum you can do is eighteen months or the life of the grand jury, whichever is shorter. Unknown Male: Yeah. Angiulo: Coming from you. Cintolo: And then he said to me, "how long does the grand jury sit?" I said, "the grand jury sits for thirty-six months." Angiulo: Well he's thick, he doesn't understand about thirty-six months. But you gotta understand, coming from you that's the story. Coming from him, that's saying "Listen I was there, ..., and no matter where you go, might take, might take a week, two weeks, three weeks to get to you, but we'll get to ya." Do you understand? Do you understand what I'm talking about? The difference. Kazonis: Well I convinced him already, for tomorrow forget about.... Angiulo: In fact, what he wanted to do was, when he got through with Skinny, he wanted to just go home and get his ... underwear and go, go, go away. On March 26, in Cintolo's absence, Angiulo described how LaFreniere had reacted to Kazonis's importunings: 987 "The lawyer told me I had to go do thirty-six months. I told my wife, I gotta go away for three years. Crazy, my lawyer expects that. Don't tell me," he says, "[the] lawyer talked to me; he told me to go away for thirty-six months." (Emphasis supplied). On March 31, the appellant met briefly with Angiulo to plot strategy. By this time, it was obvious that Jason'who had been subpoenaed by the grand jury'was a target of the investigation and would not be offered immunity. Cintolo was, according to the plan which he and Angiulo had mapped out, to represent Jason as well as LaFreniere. The lawyer suggested that he could "have [Jason] plead the fifth." To this, Angiulo responded: Not yet, we shouldn't. No, sir. We didn't learn nothing. You understand, I want the questions specifically, and somewhere along the line he'll be indoctrinated by me, if you wanna call it that. When Cintolo said that he would "like to try to appeal" any court order disqualifying him from dual representation of both of these "clients," Angiulo rejoined: "Why would you like to do anything? We are here only to discuss all of the ultimate measures to tell them to go [perform an anatomically unlikely act upon] themselves." On April 1, LaFreniere received immunity, thereby stripping him of the fifth amendment's protection against compelled self-incrimination. Nothing daunted, Cintolo continued to participate in discussions with Angiulo and his subordinates in which the anticipated commission of contempt before the grand jury was frankly acknowledged as an objective. At one point Cintolo remarked, "they've got to figure if they can isolate [LaFreniere] in a sense ... if they can pull him away from me, Okay. If they can pull him away from me, then maybe they get something out of him. Whether he's gonna voluntarily do it, or just by sheer ignorance he's gonna blurt it out. I think that's what they want." (Emphasis supplied). Moments later, Cintolo added:

I talked to him ___ to evaluate what he's saying to me'in fact, it was like I do with everybody: instill confidence in them, you know. I kept telling him, "I might not be able to help you out, but I can tell ya, I'll fight like a son of a To get him into a confident situation, making him think that we can do what we're saying we can do, and all of a sudden smack, he's a ... goner. (Emphasis supplied). ^{Footnote 4}

Discussions regarding the grand jury investigation continued throughout the month of April. The appellant was a regular participant. In one conversation, the group attempted to identify an individual whom they had spotted and believed to be an informant. In response to a query by Cintolo, Angiulo gave the following chilling command: "I don't want to know about this guy no more. I want [Kazonis] to go see him.... We'll ... kill him once and for all."

On April 23, LaFreniere appeared before the grand jury and, reading a state^ ment prepared for him by Cintolo, refused to testify. Notwithstanding the immunity which had been conferred, the refusal was predicated on fifth amendment grounds. At a hearing on the government's ensuing motion to compel, the duty judge dismissed Cintolo's argument that the immunity bestowed upon LaFreniere was somehow inadequate as "clearly frivolous." ^{Footnote 5} leaving court, the appellant went directly to 98 Prince Street. Angiulo greeted him with the question, "Is he in jail, just say yes or no?" Cintolo responded, "Not yet." The two men then dissected what had transpired at the grand jury in minute detail. At one point, the appellant informed Angiulo that the grand jury had queried LaFreniere about the contract on his life, volunteering that "I think they know about ______" Richie [Gambale] and Peter [Limone]." When Cintolo mentioned that LaFreniere had already admitted having received an "invitation" to "meet," Angiulo remarked that Gambale had indeed ventured such an initiative. "The dirty part of this, there's no fiction here. They don't have to fictionalize. He'll give them the pieces. They'll put the puzzle together." Then, Cintolo adverted to LaFreniere's professed desire to answer a few of the grand jury's questions. The following exchange took place: Angiulo: That's why I think it's starting to enter his mind, Billy. I don't like the answers.

Cintolo: Maybe a couple of times, couple of ... "Why couldn't I answer these questions?" Angiulo: Your answer to him is gonna be, when he says that to you, "Hey Walter, let me tell you something, huh: don't ever come back to haunt me.

With one of these questions, you're gonna commit perjury because instead of doing eighteen months you gonna ... go for five years." But how you give it back you better be very ... careful __ You hear me: very important, Billy, you gotta feel him out.

Upon On June 2, 1982, LaFreniere was held in contempt in federal district court and was sentenced to an eighteen month term of incarceration, which he served in full. Cin-

tolo represented him throughout the entire period of his immurement. He was disqualified by court order, however, from continuing to appear for Jason Angiulo.

At his own trial, appellant testified that, although he was aware of Angiulo's involvement in illegal businesses, he had not acted with the intent corruptly to obstruct or impede justice while representing LaFreniere. To the contrary, he claimed to have been cooperating'or pretending to cooperate'with Angiulo solely to enhance his ability to counsel his true client (LaFreniere). The jury obviously disbelieved these assertions and drew a different set of inferences.

II.

From the facts established at trial, a sampling of which we have set out above, we find overwhelming evidence of a conspiracy among Angiulo and his associates to pressure LaFreniere'at all costs and by the nearest means'so as to prevent his testifying before the grand jury; in short, a conspiracy to violate 18 U.S.C. § 1503.

Drawing reasonable inferences from the evidence in the light most hospitable to the government, we have no difficulty recognizing that the defendant lent his informed assistance to this conspiracy. Indeed, Cintolo's counsel conceded as much at oral argument of this appeal, when he stated: Cintolo knew that Gennaro Angiulo was doing his level best to influence Walter LaFreniere through other people, including Walter LaFreniere's father-in-law, Louis Venios, to persuade Walter LaFreniere to "stand up"'in the vernacular, to refuse to testify'even though immunized, and to do an eighteen month sentence for contempt. There is no question that the evidence makes out a conspiracy, of which Gennaro Angiulo was at the head, to influence LaFreniere. And there is no question that Cintolo, knowing that, continued to represent LaFreniere ... partly with a purpose to gain time and partly with a purpose to obtain information. Secondly, he passed on such information as he did have to the Angiulos'as, for example, what questions were being asked [in the grand jury]. Indeed, most everything he did played into the hands of Gennaro Angiulo.

Cintolo argues, however, that appearances are deceiving in this case; that his authentic motive in pursuing this perilous course of conduct was to obtain information from Angiulo that would assist him in representing the interests of LaFreniere. He portrays himself as a double agent of sorts, using the ringleader of the mob as the ringleader was attempting to manipulate him. Whil