Appeal from a conviction in the United States District Court for the Eastern District of New York (Bartels, J.) under 18 U.S.C. § 1503 for obstruction of justice where appellant, a lawyer, was convicted of a scheme to obtain money from an about-to-be-sentenced defendant upon a promise that appellant could ensure him a lenient sentence.
Meskill, Newman and Cardamone, Circuit Judges.
CARDAMONE, Circuit Judge:
Appellant, Anthony J. Buffalano, is a lawyer convicted under a single count indictment charging him with extracting $3,500 from another individual who was about to be sentenced. Buffalano represented that the money solicited would be used to bribe the judge and ensure that the individual received a lenient sentence. Following a three day jury trial before the United States District Court for the Eastern District of New York (Bartels, J.), appellant was convicted under 18 U.S.C. § 1503 (1982), the federal obstruction of justice statute. The attorney's actions in this case demonstrate a woeful lack of understanding of a lawyer's special responsibility as an officer of the legal system for the quality of justice and the requirement that he demonstrate respect for that legal system and those, including judges and other lawyers, who serve it.
This appeal presents a two-fold issue: whether Buffalano's actions violate 18 U.S.C. § 1503, and, if so, whether the law was properly charged to the jury. Because the evidence permitted the jury to find a violation of the statute, we reject appellant's request that the indictment be dismissed; nonetheless, since the charge was incorrect the conviction must be reversed and the case remanded to the district court for a new trial.
Buffalano's background as an attorney included service as an Assistant District Attorney in Brooklyn, counsel to the Police Benevolent Association and, at the time that this January 1983 indictment was filed, law secretary for a Justice of the New York State Supreme Court. The indictment charged that Buffalano did "corruptly endeavor to influence, obstruct and impede the due administration of justice with respect to the then pending sentence of . . . Thomas Conti . . . in that Anthony J. Buffalano did solicit from . . . Conti . . . a sum of money representing that Anthony J. Buffalano would ensure through corrupt means that Conti would receive a lenient sentence."
The facts as developed at the April 1983 trial are not in dispute. Six witnesses testified. The principal witness was Gaetano "Tommy" Conti whose recorded conversations with appellant Buffalano contained the incriminating evidence which convicted appellant of obstruction of justice. Two of the witnesses, Hanley and Ryan, are FBI agents. Visokay is Conti's federal probation officer, Agulnick was Conti's attorney and Judge Platt was scheduled to be the sentencing judge in Conti's criminal case. When he learned of the payoff scheme, Judge Platt recused himself.
Conti is a printer by trade whose friendship with Buffalano is one of many years standing. Conti was arrested in the summer of 1981 for counterfeiting. After his arrest he sought out his old friend Buffalano for advice. Buffalano was unable to represent him because he was serving as a law secretary to a New York state court judge. He did arrange to have Conti see attorney Barry Agulnick, with whom Buffalano had previously been associated in a law practice. After a meeting between the two, Conti retained Agulnick. Buffalano continued to act as a liaison between Conti and Agulnick, relaying information back and forth. In September 1981 Conti pled guilty to conspiracy before Judge Platt. About two days before his scheduled sentencing, Conti had a conversation with Buffalano. On that occasion Buffalano told Conti that Agulnick had read his pre-sentence report and that "it didn't look too good." At the same time Buffalano, to whom Conti owed some money, mentioned that for the sum of $3,500 he could arrange to "fix" the sentencing judge to ensure a lenient sentence. Conti understood this to be a reference to Judge Platt. Buffalano described how he would go about it. His method was to contact another lawyer who was a leader of the 52nd District Democratic Club and if money was forthcoming, that person could "fix" the case. To lend credence to his claimed ability to influence the sentencing, Buffalano related how this same political leader had handled another case before another United States District Judge. In that case a woman by the name of Valerie was supposed to receive a three-year sentence, but instead received only six months. Buffalano knew that Conti was aware that a former law associate of Agulnick had represented Valerie. Buffalano's story was a trumped-up tale, cut from whole cloth.
While pondering this proposition and without indicating whether or not he would pursue it, Conti told Buffalano that he had some information on a drug related case and asked him to contact Agulnick and relay that fact as well as the fact that Conti planned to cooperate with the Government in the counterfeiting case charged against him. The cooperation consisted of Conti " setting-up" a criminal suspect in a drug related case and then contacting government agents who, in return, would make that cooperation known to the court at the time of Conti's sentence. While talking with one of the agents about this drug-related matter, Conti mentioned the conversation that Buffalano had had with him about paying off a federal judge to obtain a lenient sentence.
Unknown to Buffalano, Conti then decided to cooperate with the government in an investigation of Buffalano's solicitation of money ostensibly to "fix" the sentence by bribing a federal judge. Conti was put in contact with F.B.I. agents Hanley and Kirby who instructed him to arrange a meeting with Buffalano and to attend it wearing a body recorder. Conti was to tell Buffalano that he had been unable to arrange the "set-up" in the drug-related case and that since "cooperation" was not going to help him, he now wanted Buffalano to talk to the local political leader on his behalf. The specific meeting where this ploy was to be used was set by a telephone call for December 4th. On December 4, 1981 Conti and Buffalano met for lunch. Conti falsely explained that the case he was cooperating in was not going well and that he was nervous about his sentencing. Buffalano agreed that cooperation would not help and that Agulnick had told him the prosecutor wanted to put Conti away for five years. The pre-sentence report had actually recommended only six months. Another meeting to discuss the matter further was arranged for December 10. Prior to that date the government agents not only wired Conti with a body recorder, but also gave him $3,500 in cash. On this occasion Conti and Buffalano met in front of the Supreme Court building on Court Street in Brooklyn and then drove around together in an automobile. The recording of the conversation, though inaudible in spots, clearly reveals Buffalano assuring Conti that the "fix" was in. Ironically, at one point in the conversation, when Conti asked a pointed question using the word "fix," Buffalano sharply rejoined "what kind of talk is that? . . . when you use words like that . . . I figure there's a tape recorder." Failing to heed his own suspicious instincts, Buffalano accepted the $3,500 cash payoff and, undaunted, later continued to give assurances to Conti falsely relating how the money had been used to ensure his obtaining a lenient sentence. Actually, Buffalano had simply put the money in his pocket. He made no attempt to contact Judge Platt, nor was there any evidence that such contact was ever contemplated.
The other witnesses, attorney Agulnick, probation officer Visokay, and Judge Platt, testified regarding the role of a defendant in the sentencing process who has pleaded guilty to a charge. A defendant may, for example, contact the prosecuting attorney and volunteer information in an effort to secure a favorable recommendation at sentence. The defense attorney must be given information relating to defendant's character, family life, employment record and the like to submit by way of mitigation prior to and at sentencing. The defendant also has an opportunity to speak to his probation officer and, with his attorney, to dispute the report and to address the court. The defendant's cooperation, if any, with the government is reflected in the probation report which the judge considers prior to sentencing and a judge may also be influenced by what he hears during the defendant's allocution at sentencing. The conclusion drawn from this testimony is that a defendant who foregoes this active role of self-help risks prejudicing his own case before the sentencing court. It is in the light of this factual background that we discuss the legal issues raised.