801 F.2d 1437 (4th Cir. 1986), 85-5035, United States v. Tedder

Docket Nº:85-5035(L), 85-5139 and 85-5140.
Citation:801 F.2d 1437
Party Name:UNITED STATES of America, Appellee, v. David L. TEDDER, Appellant. UNITED STATES of America, Appellee, v. David Lee ROBERTS, Appellant. UNITED STATES of America, Appellee, v. Ronald Benson ROBERTS, a/k/a
Case Date:September 29, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1437

801 F.2d 1437 (4th Cir. 1986)

UNITED STATES of America, Appellee,

v.

David L. TEDDER, Appellant.

UNITED STATES of America, Appellee,

v.

David Lee ROBERTS, Appellant.

UNITED STATES of America, Appellee,

v.

Ronald Benson ROBERTS, a/k/a "BB", Appellant.

Nos. 85-5035(L), 85-5139 and 85-5140.

United States Court of Appeals, Fourth Circuit

September 29, 1986

Argued April 9, 1986.

Rehearing and Rehearing En Banc Denied Nov. 3, 1986 in No. 85-5035.

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Charles B. Macloskie, Beaufort, S.C. and Melvin L. Roberts, York, S.C., for appellants David and Ronald Roberts.

John McIntosh, Asst. U.S. Atty. (Vinton D. Lide, U.S. Atty., Robert C. Jendron, Jr., Asst. U.S. Atty., Columbia, S.C., Donen Davis and Frank Cornely, Law Clerks, on brief), for appellee.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

David L. Tedder, David Lee Roberts, and Ronald Benson Roberts were tried together before a jury and convicted of a number of offenses. 1 Tedder was convicted of conspiracy to import marijuana, conspiracy to possess marijuana with intent to distribute, conspiracy to defraud the United States, and six charges of perjury before a Grand Jury. The two Roberts, who played a subsidiary role in the drug conspiracies, were convicted of conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute.

They appeal, advancing a number of contentions why they should be acquitted or why their convictions should be reversed and a new trial ordered. With the sole exception of one of Tedder's perjury convictions, we are not persuaded that the judgments should be disturbed. We therefore affirm except for Tedder's conviction for perjury under Count 22 of the indictment. Tedder's conviction under that count is reversed.

I.

We confine our initial statement of the facts to an overview of the government's case and to its procedural history. Other pertinent facts will be stated in our discussion of the specific contentions to which they relate.

In the early 1970's, Richard F. (Rocky) Bradford and Joseph Allen Patterson, IV (Allen Patterson) began what is known in the marijuana smuggling business as a contract off-load team. For a fee, usually a percentage of the gross proceeds from the sale of marijuana, they would provide an off-load site, security and surveillance, off-loaders, shuttle boats, trucks and warehouse facilities for others who imported marijuana into the United States. Later, they began to import their own marijuana from Jamaica and South America and arranged for its subsequent distribution through the East Coast of the United States. As the conspiracy continued on

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this expanded scale, it was joined by the Roberts and by Tedder. The Roberts were "employed" towards the end of the conspiracy to purchase three off-load vehicles and to weigh and distribute a load of imported marijuana upon its arrival at the "stash house," the point of warehousing or assembly. They were implicated in only the last of the importations undertaken as part of the conspiracy. Tedder, who is an attorney, was employed by Patterson and Glen Jaeckel, another co-conspirator, to launder drug proceeds through Bahamian bank accounts and to help reinvest the money in South Carolina property. Tedder joined the conspiracy in 1980 when he traveled to the Bahamas to set up trust accounts for Patterson and Jaeckel.

The Roberts and thirty-two others were named in an indictment returned on May 31, 1984. Tedder had testified before the Grand Jury, but he was not named in its first indictment. That indictment charged a conspiracy to import marijuana and a conspiracy to possess marijuana with intent to distribute, as well as a variety of substantive offenses. The Grand Jury, however, continued its investigation, and several of the original thirty-two defendants pleaded guilty and provided new information about the scope of the scheme and the identity of its participants. Patterson, himself, pleaded guilty to operating a continuing criminal enterprise and provided information about his relationship with Tedder. Patterson's sister-in-law, a lawyer in the same office as Tedder, testified before the Grand Jury after Tedder unsuccessfully sought to quash the subpoena ordering her to appear on the ground of attorney-client privilege.

Based upon this new information, the Grand Jury returned a Superseding Indictment on September 19, 1984. That indictment named four new defendants, including Tedder, and eliminated twenty-three original defendants who had pleaded guilty. Thus the new indictment named thirteen defendants. Of the thirteen, four were fugitives, five pleaded guilty, and Tedder, the Roberts and McIntyre, the nonappealing defendant, went to trial jointly.

We turn now to the contentions of the several defendants.

II.

David L. Tedder

Applicable solely to his case, Tedder argues that his indictment and conviction for perjury were obtained in violation of his timely-asserted attorney-client privilege because the testimony of Judith Patterson, his fellow associate in the law firm for which he worked and which represented him, was received in evidence. He also asserts reversible error in the admission of testimony that he engaged in illegal drug transactions in the early 1970's with Bradford and Allen Patterson prior to the conspiracies with which he was charged in this case. He argues that his motion for a mistrial should have been granted when Patterson, in response to cross-examination by Tedder's counsel, disclosed that he, Patterson, had been subjected to a polygraph test. He argues further that the evidence was legally insufficient to convict him of the conspiracy charges and of the perjury charges. He also contends that records of the Bank of Nova Scotia, obtained by letters rogatory, were improperly admitted into evidence because he was not afforded the opportunity to contest their trustworthiness. Further, he contends that exculpatory evidence was improperly excluded, and finally he argues that he was denied a proper jury instruction which he requested regarding the charge of conspiracy to defraud the government.

A. Attorney-Client Privilege

Judith Patterson, the wife of Allen Patterson's twin brother, Steven, and a professional colleague of David Tedder, testified before the Grand Jury and at trial that Tedder told her that he had perjured himself in his Grand Jury appearance. Specifically, she testified that Tedder came to her office upon his return from the Grand Jury and informed her that he had "taken a calculated risk" by denying participation in certain transactions with the Bank of Nova

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Scotia in the Bahamas. Shortly thereafter, Tedder and Judith Patterson traveled together to a Continuing Legal Education seminar on family law. While driving across the Dunbar Bridge between Beaufort, South Carolina and Columbia, South Carolina, Tedder admitted that he had perjured himself before the Grand Jury by denying knowledge that William J. Dunbar, the incorporator of one of the corporations under investigation, was a fictitious person. Tedder also admitted that he traveled to the Bank of Nova Scotia on behalf of co-conspirator Glen Jaeckel. Finally, Tedder acknowledged that he had assisted Allen Patterson in creating false promissory notes to disguise the expenditure of cash derived from drug smuggling. On the basis of this and other evidence, see infra, Tedder was convicted of five counts of perjury.

Tedder contends that Judith Patterson's testimony regarding his admissions was given in violation of his timely-asserted attorney-client privilege. Rule 501 of the Federal Rules of Evidence requires federal courts to apply federal common law to assertions of privilege in criminal cases. 2 United States v. Gillock, 445 U.S. 360, 368, 100 S.Ct. 1185, 1191, 63 L.Ed.2d 454 (1980). As the proponent of the privilege, Tedder must prove its applicability. United States v. (Under Seal), 748 F.2d 871, 876 (4 Cir.1984).

In this appeal, Tedder has asserted both direct and derivative claims of attorney-client privilege. His direct claim rests on his assertion that any inculpatory statements he made to Judith Patterson were for the purpose of securing legal advice and assistance. In addition, Tedder contends that he and Judith Patterson enjoyed an attorney-client relationship derivatively, by virtue of the fact that other members of the law firm at which they were both employed were providing him with legal advice. The district court rejected both claims of privilege, and we agree.

1. Direct claims of privilege

We have stated repeatedly that the attorney-client privilege is to be strictly construed, in order to harmonize it, to the extent possible, with the truthseeking mission of the legal process. United States v. (Under Seal), 748 F.2d at 875; In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4 Cir.1984); NLRB v. Harvey, 349 F.2d 900, 907 (4 Cir.1965). Generally, "the attorney-client privilege protects from disclosure communications from a client to his attorney made in confidence and concerning legal advice sought from his attorney," In re Special Grand Jury No. 81-1, 676 F.2d 1005, 1008-09 (4 Cir.1982), but "the mere relationship of attorney-client does not warrant a presumption of confidentiality." In re Grand Jury Proceedings, 727 F.2d at 1356; see also United States v. (Under Seal), 748 F.2d at 875.

In NLRB v. Harvey, a case which we continue to treat as viable, see United States v. (Under Seal), 748 F.2d at 875; In re Special Grand Jury No. 81-1, 676 F.2d at 1009, we referred to two definitions of the attorney-client privilege. Wigmore holds the...

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