United States v. Rakes

United States Court of Appeals for the First Circuit · 1998 · Evidence

136 F.3d 1 (1st Cir. 1998)

Updated August 22, 2026

EvidencePrivilegesAttorney-Client PrivilegeMarital Communications PrivilegeCrime-Fraud ExceptionWaiverprivilegemarital communications

Facts

Stephen Rakes sought to suppress conversations with Julie Rakes, his wife at the time, and with attorney John Sullivan concerning threats against him and the transfer of the couple's liquor store business. The district court found the communications confidential and suppressed them, except for one spousal conversation apparently made in the presence of a third party. The government argued that the privileges were lost because the communications occurred during an extortion scheme and because Rakes later told Brian Burke that he had been forced out of the business. The government also conceded that the Rakeses were victims of the alleged extortion scheme.

Issue

Whether confidential marital and attorney-client communications lost their privileged status because they occurred while an alleged extortion was ongoing, where the privilege holder was the victim rather than a wrongful participant in the crime, and whether Rakes waived the privileges by later disclosing to a third party that he had been forced out of the business.

Rule

Confidential marital and attorney-client communications are not stripped of privilege merely because they occur during the same time frame as criminal conduct. The crime-fraud exception requires wrongful complicity by the privilege holder, not innocent or involuntary conduct by a victim of crime. Further, disclosure of underlying facts to a third party does not ordinarily waive privilege as to the confidential communications themselves, unless the communications are disclosed or the disclosure is so complete that it defeats the privilege claim.

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Providence, Nora Velasquez was threatened by local gang members who demanded that she sign over her towing business. She privately met with her lawyer, Daniel Kerr, to ask what legal steps were available and to discuss the threatened transfer. At a later criminal trial, prosecutors argue the conversation was unprivileged because it occurred while the extortion was still underway and the transfer would help complete the crime.

Is the conversation with Daniel most likely protected?

Explanation. The majority held that communications do not lose privilege merely because they occur during the same time frame as criminal conduct. The crime-fraud exception requires that the privilege holder seek to use the lawyer's services to enable or aid the holder's own crime or fraud through wrongful complicity. A victim's involuntary compliance with threats does not itself forfeit the privilege.