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U.S. v. Rakes

    Citation

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    Bloomberg Law

    Brief Fact Summary. After Stephen Rakes (Defendant-Appellee) sold a liquor store that he owned with his wife to an individual for an amount that the government alleged was much less than the store’s actual value, Defendant-Appellee was summoned by a federal grand jury to give testimony about the sale; the government also alleged that Defendant-Appellee had been threatened to make the sale. Defendant-Appellee denied that he had sold the store as a result of being threatened, and claimed that he made the sale to make a profit. Defendant-Appellee’s attorney, who had helped with the store sale transaction, was also summoned to give testimony about the sale, but refused to testify. After the attorney’s testimony was compelled by a district court judge, Defendant-Appellee was indicted for perjury and obstruction of justice, and filed a motion to suppress the testimony, which the court granted with one exception. The government appeals the court’s grant of the motion to suppress here.

    Synopsis of Rule of Law. Communications made by a husband to his wife, when made in the absence of third parties and in the course of their marriage, are privileged, as are communications made by an individual to his attorney, when the communications are made in the course of the attorney’s representation and are related to legal services, and also made in the absence of third parties.

    Facts. Defendant-Appellee was indicted by a federal grand jury and charged with perjury and obstruction of justice in 1996.
    In the indictment, the government alleged that Defendant-Appellee had sold a liquor store he owned with his wife to an individual for much less than the store’s actual value after being threatened by James Whitey Bulger (Bulger).
    In front of the grand jury, Defendant-Appellee testified that he had sold the store because it was too much work and that he had intended to make a profit on the sale; Defendant-Appellee denied that he had been threatened by anyone to make the sale.
    John P. Sullivan (Sullivan), Defendant-Appellee’s attorney, was also summoned and his testimony compelled by an order of a district judge; Sullivan testified about various conversations he had with Defendant-Appellee.
    Defendant-Appellee was charged with perjury based on his grand jury testimony, and filed a motion to suppress evidence of conversation, which the court granted, except with respect to one conversation that took place in the presence of a third party, and the government appealed.

    Issues.
    Was the district court judge correct to suppress the communications made between Defendant-Appellee and his wife, relying on the privilege for spousal communications?

    Was the district court judge correct to suppress the communications made between Defendant-Appellee and Sullivan, relying on the attorney-client privilege?

    Held.
    Yes; the communications at issue were privileged under the spousal privilege and were not subject to any exception; therefore the district court judge was correct to order them suppressed.

    Yes; the communications at issue were privileged under the attorney-client privilege and not subject to any exception; therefore the district court judge was correct to order them suppressed.


    Discussion. The court addresses the communications by looking first at the formal requisites for the attorney-client and marital communications privileges and hold that they were “clearly met.” The court then acknowledges that the “government’s main claim is that the privileges were waived or forfeited.” In its analysis, the court focuses on the applicable exceptions to each privilege, concentrating its discussion on what it calls, “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.” The court concludes that:
    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.
    Ultimately, the court holds that, “We simply agree with the district court that the suppressed communications were originally privileged, and that there was no later loss of the privilege as claimed by the government.”


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