616 F.3d 1172 (10th Cir. 2010), 09-2062, In re Grand Jury Proceedings

Docket Nº:09-2062, 09-2068, 09-2209, 09-2228.
Citation:616 F.3d 1172
Opinion Judge:EBEL, Circuit Judge.
Judge Panel:Before GORSUCH, EBEL, and HOLMES, Circuit Judges.
Case Date:August 18, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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616 F.3d 1172 (10th Cir. 2010)


Nos. 09-2062, 09-2068, 09-2209, 09-2228.

United States Court of Appeals, Tenth Circuit.

August 18, 2010

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The Court previously issued under seal two opinions regarding the discovery and use of material before a Grand Jury in re: 09-2062/09-2068 and 09-2209/09-2228. The Grand Jury at issue in those cases has now been discharged without returning any indictment against the subject of the investigation.

The Court believes that publication of these two opinions, in redacted form, is necessary to advance the law on certain issues discussed in those opinions. However, the Court is also mindful of the need to protect the privacy of the subject of the investigation and the secrecy of Grand Jury proceedings. Such protections are particularly acute in this case where no indictment was returned by the Grand Jury.

The subject of the Grand Jury has filed an objection to the publication of these two opinions. Alternatively, the subject of the investigation has suggested redactions in the opinions, and reported that those suggested redactions were agreeable to the United States Attorney.

Having considered the parties' positions and the competing and sometimes conflicting interests implicated, it is the judgment of the Court that:

(1) The subject's request that these opinions not be published is DENIED.

(2) The request for appropriate redactions is GRANTED as reflected in the opinions hereby being published.

(3) As redacted, the two opinions in re: Grand Jury Proceedings Nos. 09-2062/09-2068 (on the first appeal) and 09-2209/09-2228 (on the second appeal) are attached to this order. We ORDER that the opinions be published, and direct the Clerk to take appropriate steps in that regard.



Before GORSUCH, EBEL, and HOLMES, Circuit Judges.

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EBEL, Circuit Judge.

This appeal arises from subpoenas issued to two of Appellant's lawyers, Attorney # 1 and Attorney # 2, by a federal grand jury investigating alleged wrongdoing by Appellant.1 Appellant intervened in this investigation seeking to quash the subpoenas on the grounds that they violated his Sixth Amendment right to counsel and {his state's} Rules of Professional Conduct, and compelled testimony and the disclosure of documents protected by the attorney-client privilege and attorney work-product doctrine. Appellant also moved for dismissal of the grand jury or other pre-indictment relief to remedy the government's alleged misconduct before the grand jury. Unsatisfied with the district court's decisions denying relief, Appellant has appealed to this court.2

Before addressing the arguments raised, we first consider whether Appellant's claims are properly before this court. We dismiss Appellant's claims of prosecutorial misconduct before the grand jury and Appellant's requests for pre-indictment remedies because we lack appellate jurisdiction. Also, we dismiss as premature Appellant's challenge to the district court's order directing Attorney # 1 to produce billing records for in camera review. Finally, exercising appellate jurisdiction under the Perlman 3 rule over Appellant's sole remaining challenge, to the district court's denial of his motion to quash the testimonial subpoenas issued to Attorneys # 1 & # 2, we affirm the district court's decision to order them to answer nine questions that were originally objected to as calling for privileged responses.


Appellant is the target of an ongoing federal grand jury proceeding conducting an investigation into his allegedly making false statements {on federal forms}. {REDACTED}

The grand jury issued subpoenas seeking the testimony of Attorney # 1 and Attorney # 2 {REDACTED}. Appellant moved to quash both subpoenas based on the attorney-client privilege and because Attorneys # 1 and # 2's testimony would violate Appellant's Fifth and Sixth Amendment rights.4 In the alternative, Appellant requested that his attorneys' testimony be presented " by affidavit or, if presented live before the grand jury, then on pre-approved questions, with an instruction from the court to prevent any prejudice to the [Appellant from any invocation of privilege by his attorneys]." 5 (Jt. App'x (" JA" ) 141.)

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{REDACTED} {T}he district court held a hearing on Appellant's motions to quash, and thereafter denied both motions. In so doing, the district court judge explained that he would, instead, be available to serve as a " referee" " to resolve any disputes that [would] arise with regard to the privilege and how it's being invoked in the grand jury." (JA 578.) {REDACTED} {B}efore Attorney # 1's and Attorney # 2's rescheduled appearances before the grand jury, Appellant renewed his motions to quash, which the district court again denied. The district court eventually held three more hearings to address issues of privilege during breaks in the questioning of Attorney # 1 and Attorney # 2. During the hearings, Appellant indicated his intent to appeal the court's rulings on privilege, and for the sake of expediency, the district court instructed " the government to ... ask whatever questions you have" in order to have a full record on appeal. (JA 666.)

Although Appellant's attorneys initially declined to answer any questions before the grand jury, they eventually answered many of the government's questions.6 As to the questions which they declined to answer, each witness asserted the Sixth Amendment, attorney-client privilege, and the work-product doctrine. After Attorney # 1 and Attorney # 2 finished testifying, the district court directed the government to review the transcripts of their testimony and inform the court of the specific questions to which these witnesses " improperly asserted" privileges. (JA 688.) Both Appellant and the government subsequently briefed the question of the validity of the privileges asserted by the attorneys. Attorney # 1 also joined in Appellant's motion, asserting that the outstanding questions posed to him implicated the work-product doctrine.

While the issues of privilege were pending before the district court, Appellant filed a separate motion requesting that the district court find that the government committed prosecutorial misconduct in its questioning of the attorneys. Appellant also asked the court to craft a remedy, including, potentially, the prevention of " any further investigation into this matter based on the prosecutorial misconduct which has already occurred." 7 (JA 204.)

Also, while the district court's decision on the propriety of Attorney # 1 and Attorney # 2's invocation of privilege before the grand jury was pending, the grand jury issued an additional subpoena to Attorney # 1, requesting Attorney # 1 produce " all billing records generated during [Attorney # 1's] representation of [Appellant] that document each contact { Attorney # 1} would have had with {Appellant} {during a specified time period}." (JA 223.) Appellant moved to quash this subpoena.

{REDACTED} {T}he district court issued {Order 1, } a written opinion and order, concluding that all questions that the government requested rulings on-save one-were acceptable and did not implicate Appellant's privileges or rights. The district court, therefore, ordered Attorney # 1 and Attorney # 2 to answer several outstanding questions. As to the one question to which the district court sustained Appellant's invocation of privilege (specifically, the work-product doctrine), the court noted that a variation of that question might avoid implicating the work-

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product doctrine. Four days later, in a short order {, } {Order 2}, the district court denied Appellant's motion concerning prosecutorial misconduct as moot given {Order 1} regarding privilege.

In light of {Order 1}, the government issued new subpoenas to Attorney # 1 and Attorney # 2 to testify before the grand jury {REDACTED}. On the same day the new subpoenas were issued, {REDACTED}, the government also sent a letter to the district court requesting a ruling on a variation of the one question that the court had deemed protected by the work-product doctrine. The government's letter also requested that the court direct Attorney # 1 to answer two other questions that the district court had not ruled on in {Order 1}.

{REDACTED} {T}he district court quashed the subpoena duces tecum issued to Attorney # 1, but ordered all of his subpoenaed billing records to be submitted to the court for in camera review so the court could determine whether they are protected {(" Order 3" )}. {REDACTED}, {T}he district court held a telephonic hearing regarding the issues raised by the government's {REDACTED} letter and Appellant's intent to appeal the district court's rulings. During the hearing, the court {issued an oral order, Order 4, which} ordered Attorney # 1 to answer several additional questions, including a variation of the previously unacceptable question. At the hearing, Attorney # 1 and Attorney # 2 both represented to the court that, instead of risking contempt, they would comply with the district court's orders directing them to answer the government's questions. The next day, the court issued an order granting Appellant's request for a sixty-day stay of the new subpoenas in order to appeal.8

Appellant now appeals from three written district court orders, {Order 1, Order 2, and Order 3}, as well as the district court's oral order issued during the telephonic hearing{, } {Order 4}.9


Before addressing the merits of Appellant's claims, we must first confirm our...

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