Meier v. Keller

Decision Date27 June 1975
Docket Number74-1673,74-1910,Nos. 74-1182,s. 74-1182
Citation521 F.2d 548
Parties76-1 USTC P 9195 John H. MEIER, Plaintiff-Appellee, v. William KELLER and Robert Bork, Defendants-Appellants. John H. MEIER, Plaintiff-Appellant, v. William KELLER et al., Defendants-Appellees. John H. MEIER, Plaintiff-Appellant, v. DeVoe HEATON et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and CONTI, * District Judge.

DUNIWAY, Circuit Judge:

These appeals arise from separate actions which Meier filed in two different district courts to prevent Suckling, an attorney who had done legal work in connection with Meier's sales of certain mining claims, from giving grand jury testimony and cooperating with a federal investigation of possible tax evasion and conspiracy charges against Meier. Both complaints, the first filed in the Central District of California, the second in the District of Nevada, alleged that Suckling had violated the attorney-client privilege by providing information and certain documents to federal agents, and that Meier's Fourth, Fifth, Sixth and Fourteenth Amendment rights would be violated if the documents and Suckling's testimony were presented to a grand jury. Named as defendants in each case were Suckling, the Attorney General of the United States, and the United States Attorney for the forum district. The prayers were for a temporary restraining order, a preliminary and a permanent injunction against Suckling, prohibiting him from appearing before any grand jury, suppressing all leads and evidence derived from his cooperation, and compelling immediate return to Meier of all documents belonging to him.

In the Central District of California Meier was partially successful. The district court granted relief similar to that sought, but declined to encompass anything that might be done in the District of Nevada in its decree, because the district court there had already issued an ex parte order requiring Suckling to testify. In the District of Nevada, the district court dismissed Meier's identical action. The Attorney General and the United States Attorney (the government attorneys) appeal from the California district court's decree (No. 74-1182). Meier cross-appeals, urging that the court erred in excluding the District of Nevada from the scope of its decree (No. 74-1673). He also appeals from the dismissal of his action in the District of Nevada (No. 74-1910). Suckling has not appealed. We reverse and remand in No. 74-1182, and dismiss in Nos. 74-1673 and 74-1910.

I. The Facts.

When Meier filed his actions in the district courts, he was already the subject of a criminal prosecution in the District of Nevada. A grand jury for that District, on August 9, 1973, had returned a two count indictment charging him with evasion of federal income taxes for the calendar years 1968 and 1969. Later, at least partially on the basis of information provided by Suckling, the government decided to seek additional or superseding indictments. Suckling had described an elaborate scheme whereby Meier and others would cause nearly valueless mining claims to be sold through strawmen and dummy foreign corporations to Meier's employer, the Hughes Tool Company, for extravagantly inflated sums of money. Apparently the plan was that the proceeds, reaped by the tax exempt foreign corporations, were to be distributed ultimately to the participants in the scheme by cash payments and deposits in secret foreign bank accounts.

On November 20, 1973, the government applied ex parte to the district court for Nevada for an order compelling Suckling to testify before the grand jury. Accompanying the application was Suckling's affidavit describing his relationship with Meier and the nature of his testimony, and a government memorandum arguing that the attorney-client privilege did not apply because Meier had retained Suckling to assist him in criminal and fraudulent activities. The district judge agreed with the government's position and ordered Suckling to testify, which Suckling did later the same day.

On the next day, November 21, Wyshak, Meier's attorney, learned from Cotton, an attorney in the Tax Division of the Department of Justice, that the government planned to seek new indictments. During the conversation Wyshak inquired as to possible venue for the indictments. Cotton mentioned Utah, California, Nevada and possibly several other states, but told Wyshak that the Internal Revenue Service had recommended Nevada. There is no indication that Wyshak then knew that Suckling had already testified before a grand jury, but as early as November 29, he and Meier began to suspect that Suckling would testify. On that date Wyshak had Meier execute an affidavit reciting his retention of Suckling and his belief that Suckling would soon go before a grand jury. The affidavit was later filed with each of Meier's complaints.

In early December, Wyshak talked to Lusk, an Assistant United States Attorney in Nevada, and learned that the new or superseding indictments were to be returned in Nevada, probably on December 20. Without disclosing his plan to file suit in California, Wyshak sought to delay the new indictments until the second week of January. However, it was not until the district judge supervising the grand jury became ill that the government agreed to a delay.

On December 20, Meier's complaint and his November 29 affidavit were filed in the district court for the Central District of California. At the hearing on the request for a temporary restraining order, held the next day, the government objected that the Central District of California was not the appropriate forum pointing out that Meier had already been indicted in Nevada, that Suckling had already appeared before the grand jury there, and that there were no plans to indict Meier anywhere else. The government offered to call the United States Attorney as a witness to confirm that his office did not plan to prosecute Meier, but the district judge refused the offer. In addition, Wyshak, cross-examined by the government, was unable to specify any reason for his belief that Meier would be indicted in California other than Cotton's early conjecture about possible venue. Subsequent information should have made it plain to Wyshak, and to the district court, that this belief was wide of the mark. The district judge, however, apparently outraged that the Nevada district court had issued an order requiring Suckling to testify without notifying Meier, and wishing to ensure that a similar procedure was not followed in his own district, issued the temporary restraining order, but expressly excluded the District of Nevada from its operation.

Dissatisfied with this limited relief, Meier filed an identical complaint in the district court for Nevada on December 26. The same judge who had earlier ordered Suckling to testify rejected Meier's argument that the California order was binding on grounds of collateral estoppel and refused to grant a second temporary restraining order. Hearings on the requested preliminary injunction were put off.

On January 2, 4 and 9, 1974, the district court for the Central District of California held hearings on the request for a preliminary injunction. By this time the court had received under seal Suckling's affidavit and the other documents on which the district judge in Nevada had relied in ordering Suckling's grand jury appearance. But the court did not have before it either the transcript of Suckling's testimony or the documents claimed by Meier, both of which were subject to Meier's broad and unspecific claims of privilege, on which the court was about to rule. Despite the uncertainty about the character of the allegedly privileged material, the district judge made no attempt to obtain it for in camera review. Instead, and in spite of further government disclaimers of interest in a California prosecution, the judge, on January 9, 1974, issued an order, captioned a permanent injunction, which required the return of all the documents to Meier and enjoined the government attorneys

from conducting any investigation or Grand Jury investigation and from initiating any criminal proceeding, in the Central District of California, or any other District except the District of Nevada, in which there will be used, directly or indirectly, any unlawful testimony or evidence containing privileged confidential communications between plaintiff and Suckling obtained from Suckling or any leads derived therefrom; provided, however, that (they) may, on at least 30 days' written notice delivered to plaintiff and his . . . counsel request relief by this Court from this Order for good cause shown.

Just five days after this order was entered, the grand jury for the District of Nevada returned two new indictments charging Meier and others with tax evasion and conspiracy. One count alleged tax evasion by Meier for the calendar year 1969, the same offense charged in Count II of the pending August, 1973, indictment, and thus operated as a superseding indictment. The district court for Nevada, noting the new indictments, dismissed Meier's action on January 30, 1974, without holding a hearing on the request for a preliminary injunction.

II. The Suggestion of Dismissal.

After the appeals before us were filed, Count III of new indictment No. LV 74-10, in the District of Nevada, was severed and transferred to the Central District of California at Meier's request. Counts I and II were retained for trial in the District of Nevada. It was agreed that the proceedings in Nevada on the second new indictment, No. LV 74-9, and the earlier August, 1973, indictment would be held in...

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