708 F.2d 1571 (11th Cir. 1983), 82-6108, In re Grand Jury Proceedings in Matter of Freeman

Docket Nº:82-6108, 82-6123
Citation:708 F.2d 1571
Party Name:In re GRAND JURY PROCEEDINGS IN the MATTER of Yale FREEMAN, Bruce Randall, Barry Halpern, Witnesses, and Michael Wisotsky and Myron Wisotsky, Intervenors-Appellants. In re GRAND JURY PROCEEDINGS IN the MATTER of Yale FREEMAN, Barry Halpern, Witnesses, Bruce Randall, Witness-Appellant, Michael Wisotsky and Myron Wisotsky, Intervenors.
Case Date:July 05, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1571

708 F.2d 1571 (11th Cir. 1983)

In re GRAND JURY PROCEEDINGS IN the MATTER of Yale FREEMAN,

Bruce Randall, Barry Halpern, Witnesses, and

Michael Wisotsky and Myron Wisotsky,

Intervenors-Appellants.

In re GRAND JURY PROCEEDINGS IN the MATTER of Yale FREEMAN,

Barry Halpern, Witnesses, Bruce Randall,

Witness-Appellant, Michael Wisotsky and

Myron Wisotsky, Intervenors.

Nos. 82-6108, 82-6123

United States Court of Appeals, Eleventh Circuit

July 5, 1983

Page 1572

[Copyrighted Material Omitted]

Page 1573

Gillespie, McCormick, McFall, Gilbert & McGee, C. Edward McGee, Jr., Fort Lauderdale, Fla., Brown, Weston & Sarno, John H. Weston, Beverly Hills, Cal., for Randall.

Rosen & Rosen, Michael J. Rosen, Miami, Fla., for Wisotsky.

Marcella Cohen, Miami Strike Force, U.S. Dept. of Justice, Miami, Fla., for appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY, VANCE and ANDERSON, Circuit Judges.

PER CURIAM:

The district court held Bruce Randall, an attorney, in contempt for violating an order compelling his testimony before a grand jury. Randall refused to answer questions regarding the identities and fee arrangements of certain clients. He moved for a stay pending his appeal of the contempt citation on the ground that his testimony was protected by the attorney-client privilege [No. 82-6123]. Michael and Myron Wisotsky also appeal the compulsion and contempt orders, as well as the district court's denial of their motions to intervene in both the proceedings which followed the compulsion order and the contempt proceedings [No. 82-6108]. The appeals were consolidated.

After temporarily staying the contempt order as to Randall, this Court then vacated the stay and modified the district court's contempt order to give Randall an opportunity to purge his contempt by testifying before the grand jury. An opinion of this Court was to follow. Even though the government has notified us that Randall has testified and therefore purged himself, we are publishing this opinion for two reasons. First, an opinion is appropriate to delineate our action in vacating the stay in as much as the chances of success on appeal were of paramount concern to the Court. Second, situations such as this are likely to occur again. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Matter of Special April 1977 Grand Jury, 581 F.2d 589, 591 (7th Cir.1978). The contempt citation was proper. Although the district court erroneously denied the motions to intervene, we hold the error was harmless.

Michael and Myron Wisotsky are targets of a grand jury investigation into alleged criminal activities including racketeering conspiracy, mail fraud, bribery, obstruction of justice and criminal investigations and tax evasion. The Government first subpoenaed attorneys Randall, Barry Halpern, and Yale Freeman to testify before a grand jury empaneled in Miami about the representation of witnesses appearing before that grand jury, including the Wisotskys. Randall and the others asserted the attorney-client privilege. A superseding grand jury in Fort Lauderdale continued the investigation. The Government again subpoenaed all three attorneys. Because the Government intended to pursue the same line of questioning as to which of the three attorneys previously asserted the attorney-client privilege, it filed a motion to compel their testimony. It subsequently filed an ex parte in camera supplemental motion to compel detailing alleged efforts by the Wisotskys to thwart the grand jury investigation by telling witnesses to lie before the grand jury and by providing them with lawyers who instructed them to assert the privilege against self-incrimination. At the Government's request the district court...

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