U.S. v. Hsia

Decision Date04 January 2000
Docket NumberNo. Crim. 98-0057 PLF.,Crim. 98-0057 PLF.
Citation81 F.Supp.2d 7
PartiesUNITED STATES of America, v. Maria HSIA, Defendant.
CourtU.S. District Court — District of Columbia

Nancy Luque, Andrew L. Hurst, Rangely Wallace, Reed Smith Shaw & McClay, Washington, DC, for Maria Hsia.

OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on motion of the defendant, Maria Hsia, to dismiss the indictment on the ground that it is tainted. Defendant argues that the government has obtained and used information protected by the attorney-client and joint defense privileges in violation of her rights. Specifically, Ms. Hsia alleges that her former counsel, Brian A. Sun and his colleagues at the firm of O'Neill, Lysaght & Sun, in negotiating for immunity for certain of their other clients, shared privileged information with the government. Ms. Hsia suggests that such information, which was communicated directly to Sun when he represented her or through her subsequently retained attorney, Gordon A. Greenberg of the firm of Sheppard, Mullin, Richter & Hampton, was provided as part of a joint defense agreement ("JDA"). Ms. Hsia maintains that the government acquired and used this information with the knowledge that a JDA existed.

Defendant argues that the government's use of her confidential, privileged attorney-client communications have tainted the indictment, the bill of particulars and this entire prosecution, thereby depriving her of her Fifth and Sixth Amendment rights to due process and to counsel. Defendant urges the Court to remedy or neutralize the taint by dismissing the indictment under at least one of three separate legal theories: because the government knowingly intruded into her attorney-client privilege, because the government engaged in outrageous conduct, and/or because clear injustices that otherwise cannot be remedied must be addressed under the Court's inherent supervisory powers. Alternatively, the defendant argues that the prosecutors should be disqualified. The facts, however, simply do not support defendant's allegations. She has failed to provide sufficient evidence under any of these theories that would lead the Court to believe that it should take any action whatsoever, let alone dismiss the indictment.

I. BACKGROUND

The Court convened an evidentiary hearing on the defendant's motion and took testimony on November 24, 1999 and December 22, 1999. It heard the testimony of the defendant Maria Hsia; Brian A. Sun and Frederick Friedman, partners in the law firm of O'Neill, Lysaght & Sun; Stacy Cohen, a former legal assistant at the same firm; James D. Robinson, a former attorney for Maria Hsia & Associates and the Hsi Lai Temple; Eric L. Yaffe, the lead prosecutor in this case; and Nancy Luque, lead defense counsel for Ms. Hsia. It also considered two affidavits, one of them submitted under seal, from defendant's former attorney Gordon A. Greenberg, formerly a partner at Sheppard, Mullin, Richter & Hampton, and portions of the grand jury testimony of Stacy Cohen and Venerable Yi Chu, submitted by the government under seal. Finally, it considered two ex parte affidavits submitted by the defendant, one of which purports to identify portions of the indictment and the bill of particulars which, according to the defendant, rely exclusively on privileged information that could only have come from information she provided to others involved in the JDA and which therefore must have been passed to the government without her permission.

The Court attempted to take as much of the testimony as possible in open court but excused the government and the public from portions of the hearing at which privileged information was likely to be elicited. In doing so, it considered the objections to public proceedings lodged by the defendant through her current counsel and by various intervenors who appeared through counsel — namely the International Buddhist Progress Society (also known as the Hsi Lai Temple) and three of the monastics associated with the Temple: Venerable Abbess Tzu Jung, Venerable Man Ho Shih and Venerable Yi Chu. The portions of the hearing that were non-public were closed over the objection of the government, which maintained both that there was no legal authority to close such a hearing and that it was unfair to require it to defend against a motion to dismiss an indictment on grounds of prosecutorial misconduct if it were not permitted to hear the specific charges and the testimony that allegedly supported them.

The Court attempted to balance the legitimate interests of the government and the public in being present for the entirety of such an important proceeding against the interests of the defendant and the intervenors in preserving privileged information from further disclosure and the potential argument that any such disclosure, even when ordered by a court in connection with a judicial proceeding, could constitute a waiver of the privilege. See In re Sealed Case, 877 F.2d 976, 980 (D.C.Cir.1989). The Court is convinced that there is ample authority for conducting these proceedings partially behind closed doors in the circumstances presented by this unusual motion. See Halkin v. Helms, 598 F.2d 1, 5 (D.C.Cir.1978) ("It is settled that in camera proceedings are an appropriate means to resolve disputed issues of privilege."); United States v. Smith, 123 F.3d 140, 151 (3rd Cir.1997); United States v. Neill, 952 F.Supp. 834 (D.D.C.1997). Furthermore, while the Court has considered testimony received ex parte and in camera and has accepted several submissions under seal, the Court has taken care not to disclose the specific contents of the ex parte testimony or the sealed submissions in this Opinion and Order.

II. THE EVIDENCE PRESENTED

Maria Hsia testified that she and James Robinson, whom she identified as corporate counsel for Maria Hsia & Associates, met with Brian Sun at the O'Neill firm in March 1997 in order to obtain counsel for herself and Hsia & Associates in connection with the campaign finance investigation. She said that she and Robinson attended three or four such meetings with Sun in March 1997 at which they provided the relevant facts to Sun. In early April 1997, Sun recommended that Hsia retain separate counsel to represent her individually, and he referred her to Gordon A. Greenberg. Hsia testified that it was also in April 1997 that Sun and Greenberg told her that there would be a joint defense arrangement between Sun, who was representing the Hsi Lai Temple and certain monastics in connection with the investigation, and Greenberg and Hsia.

Hsia testified that she continued to meet with Sun and Greenberg, as well as sometimes with Greenberg alone and sometimes with Sun alone. She shared information freely with both and understood that the information she shared with Greenberg was also shared with Sun. Sometimes other clients of Sun's also attended these meetings. She testified that she always believed the information she disclosed was privileged and confidential when it was shared with Sun and his other clients, but she now believes that Sun provided privileged information to the government without her permission. She testified that she attended approximately five or six meetings in Sun's office and that some of the meetings were quite lengthy because Sun, his partner Fred Friedman and/or his legal assistant Stacy Cohen were gathering facts from those in attendance. She stated that while there was no retainer agreement between her and Sun or any other documentation with respect to their relationship, she believed that she had personally entered into a professional relationship with Sun and that, prior to his referring her to Greenberg, Sun was her personal attorney in connection with the campaign finance investigation. She said that whenever Robinson was present he was there on behalf of Hsia & Associates and not on her behalf.

James Robinson testified that over the years he represented both Hsia & Associates and the Hsi Lai Temple on general business matters, not on litigation matters. He said that when he learned about the campaign finance investigation he referred the Temple to Brian Sun and the O'Neill firm. He said that he and Hsia first met with Sun in late March 1997 to discuss Sun's possible representation of both Hsia and Hsia & Associates. He said that he arranged the meeting to help Hsia find counsel for both herself and her company in connection with the investigation and that he never told Sun or anyone else that he would be representing Hsia personally in connection with the investigation. The first meeting was introductory and preliminary; no substantive facts were discussed. Robinson testified that there was a second meeting, probably on March 28 or 29, 1997, that he, Hsia and two of the monastics attended with Sun at the O'Neill firm. At that meeting there was some discussion of the facts and circumstances that might be involved in the investigation, but Robinson could not remember the level of detail. He also testified that he did not recall at either of the first two meetings any discussion of conflicts of interest, multiple representation issues or a joint defense agreement.

Robinson testified that in early April 1997 there was a third meeting that he, Hsia, a number of monastics and Sun attended at the O'Neill firm. Facts were discussed in greater detail, including facts about Hsia's involvement in events now referenced in the indictment. He believes that there was a discussion of conflicts of interest and multiple representation at this meeting. While he did not specifically recall the term "joint defense agreement" being mentioned, he regarded the entire discussion as privileged and assumed that everyone present believed that it was. Robinson testified that it was...

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