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United States v. Rakes - 136 F.3d 1 (1st Cir. 1998)

Rule:

Where 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." The same rule applies to the marital communications privilege.

Facts:

Former spouses, Stephen and Julie Rakes, with the help of their attorney, John Sullivan, established Stippo’s Inc., as their jointly owned company to operate a liquor store business in South Boston. It was believed that 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 believed that James "Whitey" Bulger visited Stephen at his home, who threatened to kill Stephen 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 believed was associated with Bulger. In May 1991, the government summoned Stephen before a federal grand jury in Massachusetts investigating extortion, racketeering and money laundering. The government questioned Stephen about the transfer of Stippo's, Inc., to the alleged Bulger associate. In September 1995, Stephen Rakes gave similar testimony before a second federal grand jury. In May 1996, Stephen was indicted and charged with perjury and obstruction of justice. Asserting the privilege for confidential marital communications, defendant Stephen Rakes moved to suppress evidence of conversations between him and his former wife. In the same manner, Stephen also asked to suppress, on the grounds of attorney-client privilege, conversations between him and his one-time attorney, Sullivan. The district court granted the motion, and government brought an interlocutory appeal.

Issue:

Were defendant's conversations with his former wife and attorney covered by privilege, which justified the suppression of the conversations?

Answer:

Yes.

Conclusion:

The Court of Appeals for the First Circuit affirmed the district court’s grant of defendant’s motion to suppress evidence. The Court held that defendant intended the communication to be confidential, and that there was no general rule depriving spousal communications of privilege if they related to financial matters. Further, the Court found that the privileges invoked in the present case were not subject to the crime-fraud exception such that they were not privileged because they occurred within the same time frame as criminal act conduct. The Court found that wrongful complicity by the privilege holder was needed to forfeit the privilege, and in this case, defendant was the victim of extortion, and no wrongfulness existed on his part.

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