419 F.3d 329 (5th Cir. 2005), 04-30508, In re Grand Jury Subpoena

Docket Nº:04-30508.
Citation:419 F.3d 329
Case Date:July 26, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 329

419 F.3d 329 (5th Cir. 2005)


No. 04-30508.

United States Court of Appeals, Fifth Circuit.

July 26, 2005

Page 330

[Copyrighted Material Omitted]

Page 331

        Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Plaintiff-Appellant.

        James Stanley Lemelle, Asst. U.S. Atty. (argued), Richard Lewis Bourgeois, Jr., Baton Rouge, LA, for Defendant-Appellee.

        Appeal from the United States District Court For the Middle District of Louisiana.

         Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

        DeMOSS, Circuit Judge:

        Defendant-Appellant in this sealed case ("Appellant") appeals the district court's order that his former counsel ("Former Counsel") comply with a grand jury subpoena and the court's order denying Appellant's

Page 332

motion to quash that subpoena. 1 For the following reasons, we VACATE the court's orders, GRANT Appellant's motion to quash the grand jury subpoena, and REMAND.


        On April 10, 2003, the police arrested Appellant after they conducted a search of the house where he resided with his girlfriend ("Witness") and her minor child. The police acted on a complaint that drug trafficking was occurring at Witness's house.With Witness's permission to search her house, the police discovered, on an upper closet shelf, a loaded pistol, a loaded pistol clip, a bag of marijuana, money, and other drug paraphernalia. Witness told police she had no idea how the pistol got into her house. The police did not arrest Witness due to her surprise at the discovery. While the police were still at her house, Witness called Appellant and asked him to come home. When Appellant arrived, he told the police that the pistol and the marijuana were his; and the police placed him under arrest.

        Shortly after Appellant's arrest, Witness provided a sworn, written statement to an ATF Agent in which she declared that she did not know how the pistol got into her house and that she was shocked to see the pistol and the marijuana. About a month later, Witness testified before a federal grand jury for the Middle District of Louisiana that her statement to the ATF Agent was true and correct. On May 28, 2003, the grand jury returned a four-count indictment against Appellant for possession of a firearm by a convicted felon, possession of a firearm with an obliterated serial number, possession with intent to distribute marijuana, and using or carrying a firearm during and in relation to a drug trafficking crime.

        On June 10, 2003, the district court appointed Former Counsel to represent Appellant. 2 On March 12, 2004, shortly prior to his scheduled trial date, Appellant informed the district court by a filed letter that Former Counsel refused to present his defense in a manner which Appellant approved. Appellant denied that the firearm belonged to him, asserted that Former Counsel would not allow him to defend himself, and stated that Former Counsel refused to allow the owner of the firearm to come forward. That same day, Former Counsel moved to withdraw. On March 16, 2004, the district court granted Former Counsel's motion to withdraw. The court then appointed the Federal Public Defender to represent Appellant.

        Shortly thereafter, the district court received an affidavit dated March 15, 2004, in which Witness swore she lied when she told the police that the pistol did not belong to her. In the affidavit, Witness explained that she lied because she feared she would lose custody of her minor child. Witness's affidavit initiated an investigation to determine whether Appellant and Witness engaged in a conspiracy to violate the law or violated the law by obstructing justice, committing perjury, or suborning perjury. In mid-April 2004, Witness was informed of the investigation.

        On April 26, 2004, the government issued to Former Counsel a grand jury subpoena for May 19, 2004, seeking his testimony and "[a]ll written statements of [Appellant and Witness] and all notes, records, and recordings of interviews of

Page 333

[Appellant and Witness] ." Former Counsel refused to appear before the grand jury unless he was ordered to do so by the court; he alleged that the information sought was protected by the attorney-client and work product privileges. 3

        On April 27, 2004, Witness, after being advised of her rights and waiving them, informed the Assistant United States Attorney ("AUSA") that the contents of her March 15, 2004, affidavit were false. Witness stated that initially, when she met with Former Counsel, she told him that the firearm and the contraband found at her house did not belong to her and that she was unaware of their presence. Witness admitted after she had several conversations with Appellant, it was agreed she would execute an affidavit in which she would change her story and state that the firearm belonged to her. Witness explained Appellant and she had discussed the potential sentence that each would face. Witness admitted that she had discussed with Former Counsel the ramifications of changing her story to claim ownership of the firearm. Witness admitted that she asked Former Counsel about the penalty for committing perjury and of the potential sentence Appellant could receive if he were convicted of the firearm charge. Witness admitted that, after she learned of the grand jury investigation which had been initiated by her March 15, 2004, affidavit, she refused to lie about the firearm.

        On April 28, 2004, the government filed an ex parte motion, requesting that the district court compel Former Counsel to comply with the grand jury subpoena. The government explained that the grand jury was investigating whether Appellant and Witness violated the law and whether they sought the assistance and advice from Former Counsel to do so. The government alleged that the crime-fraud exception to the attorney-client and work product privileges justified an order for Former Counsel to comply with the grand jury subpoena.

        The government supported its motion to compel with an affidavit prepared by an AUSA. The AUSA swore that the facts provided a strong basis for the district court to find Witness had committed perjury and Appellant had aided and abetted the crime. The AUSA also swore that the facts indicated Former Counsel had refused to participate in Appellant's attempt to solicit perjured testimony and to perpetuate a fraud upon the court. The government also submitted as exhibits: Witness's initial affidavit before the ATF Agent, a transcript of Witness's testimony before the grand jury, Appellant's letter requesting new counsel, Witness's second affidavit, Witness's waiver before the AUSA, and the subpoena issued to Witness to appear before the grand jury a second time. Based on the AUSA's affidavit, the district court, in language tracking the grand jury subpoena, ordered Former Counsel to appear with all written statements and recordings from Appellant and Witness for an in camera examination in chambers.

        Prior to Former Counsel's in camera examination, the AUSA filed a supplemental affidavit. There, the AUSA swore Witness admitted to the grand jury that her

Page 334

original statements to the ATF Agent and the grand jury denying ownership of the firearm were true and correct; that her March 15, 2004, affidavit was false; and that Witness and Appellant agreed Witness would lie by stating the pistol belonged to her, in an effort to help Appellant.

        The district court examined the AUSA's affidavits and exhibits and conducted an in camera examination with Former Counsel. The court found the government met its prima facie case by showing that, during Former Counsel's representation of Appellant, Appellant and Witness were committing or intending to commit a crime or fraud and that Appellant's and Witness's communications with Former Counsel were in furtherance of that crime or fraud. The district court concluded the crime-fraud exception applied and ordered, in language tracking the grand jury subpoena, Former Counsel to comply with the subpoena. The court additionally ordered that Former Counsel should not assert the attorney-client or work product privilege as grounds for refusing to comply with the subpoena.

        Appellant moved to quash Former Counsel's grand jury subpoena. Appellant argued that Former Counsel's testimony, the documents, and the other items sought by the government were protected from disclosure by the attorney-client, work product, and Fifth Amendment privileges and were not subject to disclosure under the crime-fraud exception. Appellant asserted that his letter regarding Former Counsel's ineffective representation and Witness's inconsistent statements were not sufficient to establish the crime-fraud exception applied. Appellant also argued that Former Counsel's grand jury subpoena was overly broad; Appellant disagreed that all his communications with Former Counsel were subject to disclosure and were no longer protected by the attorney-client and work product privileges. Appellant contended that Witness's and his communications with Former Counsel, and Former Counsel's notes of these communications, made in connection with Appellant's defense to the charges in the indictment were legitimate and thus protected. That is, Appellant argued the government needed to identify each communication and document subject to disclosure and establish how the crime-fraud exception applied to the particular item.

        The government opposed Appellant's motion to quash, arguing that Appellant's Fifth Amendment privilege against self-incrimination was not applicable. With respect to Appellant's attorney-client and work product privilege arguments, the government responded that it had shown, through the documents previously submitted...

To continue reading