## Facts

- Stephen and Julie Rakes, married in 1978, jointly operated business ventures and formed Stippo’s, Inc. in 1983 with attorney John P. Sullivan to run a South Boston liquor store.
- The government alleged that in early 1984 James “Whitey” Bulger threatened Stephen Rakes with death unless Bulger or associates were made partners in the store.
- In May 1984, using Sullivan’s assistance, the Rakeses transferred Stippo’s, Inc. to another individual for far less than its alleged value.
- In 1991 and 1995 grand jury appearances, Stephen Rakes testified that no one had threatened him to sell and that he sold for benign reasons.
- A grand jury later heard from Julie Rakes and sought testimony from Sullivan; after a court order, Sullivan disclosed certain conversations with Rakes.
- In 1996, Rakes was indicted for perjury and obstruction of justice based on his grand jury testimony.
- Before trial, the district court conducted an in camera hearing and suppressed confidential marital communications and attorney-client communications, except a conversation involving a third party.
- The government took an interlocutory appeal from the suppression order under 18 U.S.C. § 3731.

## Issues

1. Whether confidential marital communications between Stephen and Julie Rakes were privileged or fell within a crime-fraud-type exception based on the government’s theory of extortion-related wrongdoing.
2. Whether communications between Stephen Rakes and attorney John P. Sullivan about the store transfer were protected by attorney-client privilege or defeated by the crime-fraud exception or loss of confidentiality.

## Decision

- The First Circuit affirmed the pretrial suppression order.
- Confidential marital communications during the marriage were protected by the marital-communications privilege; the government did not show an applicable crime-fraud exception.
- Attorney-client communications made for legal advice in the course of representation and in confidence were protected; the government did not make the required showing to invoke the crime-fraud exception.
- The only admissible communications were those lacking confidentiality due to a third party’s presence, as the district court had already limited.
- The case returned to the district court for further proceedings on the perjury and obstruction charges without the suppressed evidence.

## Legal Principles

- Marital-communications privilege protects confidential communications between spouses made during a valid marriage and in the absence of third parties; later divorce does not remove protection for communications made during the marriage.
- Limited disclosure or the presence of a third party can remove confidentiality for the specific communication in which the third party participated, without necessarily waiving privilege for other confidential marital communications.
- Attorney-client privilege protects confidential communications between a client and lawyer made in the course of representation and related to legal services.
- The crime-fraud exception requires a prima facie showing that (1) the client was engaged in or planning criminal or fraudulent conduct when seeking advice and (2) the communication was in furtherance of that conduct.
- Where the government’s theory characterizes the privilege holder as an extortion victim rather than a perpetrator using the privileged relationship to advance wrongdoing, the crime-fraud exception is not established on that basis alone.

## Conclusion

The First Circuit upheld suppression of marital and attorney-client communications because the government did not meet the prima facie standard for the crime-fraud exception and confidentiality was absent only for the discrete conversation involving a third party.


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