623 F.2d 489 (7th Cir. 1980), 79-2340, Matter of Walsh

Docket Nº:79-2340.
Citation:623 F.2d 489
Party Name:In the Matter of Carl WALSH, a Witness Before the Special September 1978 Grand Jury. Appeal of UNITED STATES of America.
Case Date:May 19, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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623 F.2d 489 (7th Cir. 1980)

In the Matter of Carl WALSH, a Witness Before the Special

September 1978 Grand Jury.

Appeal of UNITED STATES of America.

No. 79-2340.

United States Court of Appeals, Seventh Circuit

May 19, 1980

Rehearing and Rehearing In Banc Denied July 31, 1980.

Page 490

[Copyrighted Material Omitted]

Page 491

William C. Bryson, Jody M. Litchford, Appellant Section, Crim. Div., Dept. of Justice, Washington, D.C., Jeffrey M. Johnson, Sp. Atty., U.S. Dept. of Justice, Chicago, Ill., Thomas P. Sullivan, U.S. Atty., Chicago, Ill. for appellant.

Michael B. Nash, William J. Linklater, George P. Lynch, Chicago, Ill., for appellee.

Allan A. Ackerman, Santo Volpe, Patrick A. Tuite, Chicago, Ill., for amicus curiae, Illinois Defense Lawyers Associaton.

Philip H. Corboy, Chicago, Ill., for amicus curiae, Chicago Bar Association.

Before FAIRCHILD, Chief Judge, and BAUER and CUDAHY, Circuit Judges.

BAUER, Circuit Judge.

The United States appeals a ruling of the district court denying its petition for a Rule to show cause why attorney Carl Walsh should not be held in contempt for refusing to testify before a grand jury and produce records. The district court quashed the subpoenas duces tecum and ad testificandum on the ground that compliance would violate the attorney-client privilege. We reverse and remand.

I

This proceeding is another phase in the intrigue surrounding the burglary of the residence of Anthony J. Accardo. As reported in an earlier decision, "some time after the burglary shortly thereafter, as a matter of fact various people described by the government as 'known burglars' began showing up dead, none from natural causes, in the Chicago Metropolitan area." United States v. One Residence and Attached Garage, etc., 603 F.2d 1231, 1232 (7th Cir. 1979).

A grand jury has been investigating possible federal criminal violations stemming from these events. Accardo family members and Michael Volpe, a handyman for Accardo who discovered the burglary, appeared before the grand jury, represented by appellee Carl M. Walsh.

The plot thickened when, sometime after Mr. Volpe's appearance before the grand jury, "he left his home for his usual place of employment the Accardo residence and seemingly disappeared from human knowledge." Id. at 1233. The grand jury then began investigating Volpe's disappearance. The attorney Walsh, believed to be one of the last persons to have seen Volpe, was subpoenaed. The subpoena 1 required Walsh to appear and testify and to produce:

1. Accounts receivable relating to Michael Joseph Volpe, Sr., including ledgers.

2. Time records which describe the amount of time spent by Carl M. Walsh in performing services for Michael Joseph Volpe, Sr.

3. Any and all entries in records, including but not limited to file memoranda, appointment books and calendars for the period from September 8, 1978 to October 31, 1978, which memorialize the date, place, and time of meetings and/or communications between Michael Joseph Volpe, and Carl M. Walsh and Carl M. Walsh's office employees.

4. Copies of all statements, bills, receipts and payments made by and for Michael

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Joseph Volpe, Sr. relating to attorney services.

5. Retainer contracts, letters of understanding and letters of agreement for Michael Joseph Volpe, Sr. relating to the creation and continuation of an attorney-client relationship.

Walsh's motion to quash was denied and he was ordered to appear before the grand jury on July 11, 1979. Walsh came to the grand jury room on that date but refused to enter the room. The Government filed a motion for a rule to show case why Walsh should not be held in contempt. In ruling on that motion, Judge Parsons held that before an attorney could be required to appear before a grand jury at which his client had already testified, the Government must submit a list of proposed questions for in camera review and must establish:

(1) that the information and materials demanded by the subpoena are not within the ambit of the attorney-client privilege or the attorney work product exemption from disclosure, and (2) that there is a particularized need for the information or materials sought, that no other sources for such information are known or available, and that the information or materials sought are material to the investigation.

The Government submitted to the court an affidavit establishing the need for information from Walsh and a list of 73 proposed questions it intended to ask him. Without requiring Walsh to take the stand, the district court ruled that the "cumulative effect" of the proposed questions violated the attorney-client privilege. The court quashed the subpoenas and denied the Government's contempt motion. The Government appeals under 18 U.S.C. § 3731. 2

II

The first issue here is whether the attorney-client privilege insulates an attorney from having to appear before a grand jury investigating events which may implicate his clients. The grand jury, fundamental to our criminal justice system, performs "the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S...

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