857 F.2d 1346 (9th Cir. 1988), 85-1046, United States v. Perry

Docket Nº:85-1046.
Citation:857 F.2d 1346
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Franklyn G. PERRY, Defendant-Appellant.
Case Date:September 22, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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857 F.2d 1346 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Franklyn G. PERRY, Defendant-Appellant.

No. 85-1046.

United States Court of Appeals, Ninth Circuit

September 22, 1988

Argued and Submitted May 9, 1988.

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G. David Robertson and Lawrence J. Semenza, Law Offices of Lawrence J. Semenza, Reno, Nev., for defendant-appellant.

Gail Brodfuehrer, Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before KOELSCH, NOONAN and O'SCANNLAIN, Circuit Judges.

KOELSCH, Circuit Judge:

I Sixth Amendment Right to Counsel

Part One of this appeal presents the troublesome question whether the post-indictment service of a grand jury subpoena on a target's counsel constitutes a per se violation of the Sixth Amendment. Although we do not condone such conduct, we are constrained by Supreme Court and Ninth Circuit precedent to hold that the per se rule of prejudice is inapplicable on these facts.


The government's apparently increasing use of grand jury subpoenas on a target's counsel, both pre- and post-indictment, has been the subject of much comment in the last few years. 1 The practice has been almost universally criticized by courts, commentators and the defense bar because it is viewed as a tool of prosecutorial abuse and as an unethical tactical device US Attorneys employ to go on a "fishing expedition" with legal counsel without first pursuing alternative avenues to get the information. Many feel, and with some justification, that whatever benefit the government derives from this practice comes at the direct expense of the attorney-client relationship. Among the perceived costs, for example, are the potential loss of a client's choice of counsel should the latter be compelled to testify at the trial and the potential chilling effect upon the client's trust in his counsel's loyalty.

The Department of Justice took note of the situation in 1985, shortly after DOJ statistics revealed the increasing use of this type of subpoena. In July of that year, under the tutorage of Stephen S. Trott (now a member of this court), it issued a new section of the United States Attorney's Manual entitled "Policy With Regard to the Issuance of Grand Jury or Trial Subpoena to Attorneys for Information Relating to the Representation of Clients." 2 United States Attorneys' Manual Sec. 9-2.161(a) (July 18, 1985). In substance, the guidelines seek to ensure that subpoenas on counsel issue only in appropriate contexts and subject to certain safeguards. They require the prosecutor to obtain the approval of the Assistant Attorney General in charge of the Criminal Division for issuance of all subpoenas served on counsel at any time; the subpoena must seek only information "reasonably needed for the successful completion of the investigation or prosecution"; and, the prosecutor must establish that he has sought alternative

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sources first and that the need for the information outweighs the risk that the attorney will be disqualified. Taking the matter one step further, the American Bar Association House of Delegates passed a resolution in February, 1986 urging the requirement of a non-adversarial judicial approval prior to issuance of subpoenas of legal counsel. And in February of this year, the ABA House of Delegates, responding to the continuing need for protection, changed their recommendation to urge instead prior adversarial judicial proceedings.

The courts' reactions have been mixed. To balance the resulting tension between the policies underlying the grand jury process and the protected attorney-client relationship, at least one federal court has, under its supervisory powers, adopted regulations requiring prior judicial approval before issuance of a subpoena both pre- and post-indictment on a target's counsel. See United States v. Klubock, 832 F.2d 664 (1st Cir.1987).

However, this circuit has not. In In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.1983), we refused to require such a preliminary showing in the pre-indictment setting because doing so would "not advance the administration of justice," id. at 1223 (rejecting the Fourth Circuit's rationale in In Re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, vacated and withdrawn, 697 F.2d 112 (4th Cir.1982) (en banc)), and because Harvey "conflicted with this circuit's narrow construction of the supervisory power of district courts over grand juries." Id. at 1222 n. 1. See United States v. Wilson, 614 F.2d 1224, 1227-28 (9th Cir.1980) (reiterating the narrow scope of this circuit's supervisory power over grand jury proceedings); see also In the Matter of Klein, 776 F.2d 628, 633 (7th Cir.1985) (rejecting need for preliminary showing in the pre-indictment context); In re Grand Jury Proceedings (Weiner), 754 F.2d 154, 156 (6th Cir.1985) (same); In re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1575 (11th Cir.1983) (same). And in Tornay v. United States, 840 F.2d 1424 (9th Cir.1988), we adhered to that rule, postponing the question of the need for such a showing in the post-indictment setting for a future day. But cf. In Re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238 (2nd Cir 1985) (en banc), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986) (rejecting requirement to show in both pre- and post-indictment contexts).

It is sufficient for our purposes here to label the government's conduct in this case as clearly wrongful. 3 Five days before trial commenced, the government subpoenaed Perry's trial counsel to appear before a federal grand jury. The subpoena directed counsel to produce all documentation relating to Perry's fee arrangement. Notwithstanding the apparent unprivileged nature of the information sought, 4 the timing and circumstances surrounding the issuance of the subpoena strongly suggest an improper motive. 5 But because no motion

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to quash was made, our inquiry is limited to determining whether such government conduct violated Perry's Sixth Amendment right to effective assistance of counsel.


The starting point for the analysis is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) wherein the Court summarized the framework for evaluating Sixth Amendment claims. In Strickland, the Court made it plain that a conviction will not be disturbed for ineffective assistance of counsel unless the party seeking to set aside the conviction can show that counsel's performance was "deficient", i.e., "below an objective standard of reasonableness," and that "the deficient performance prejudiced the defense." Id. at 687-88, 104 S.Ct. at 2064-65. There are only two exceptions to the requirement of showing prejudice. The first typically arises in the traditional conflict of interest context--when an attorney represents multiple defendants with potentially divergent interests. Reiterating the rule announced in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Court said that defendants claiming ineffective assistance of counsel based on counsel's alleged conflict of interest need only show that counsel " 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.' " Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718 (footnote omitted)). Upon such a showing, which is typically made in a hearing on a 28 U.S.C. Sec. 2255 motion, prejudice will be presumed. E.g., United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

The second exception applies in only a narrow class of cases which trigger the "per se" rule of prejudice. In these cases, prejudice is presumed without any showing at all. Cases in which the per se rule applies are those in which there has been an actual or constructive denial of assistance, Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, or in which the state [or federal] authorities interfere with counsel's assistance in such a way that "prejudice ... is so likely that case-by-case inquiry into prejudice is not worth the cost." Id. (citing United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047 n. 25, 80 L.Ed.2d 657 (1984)).

Perry has not brought a section 2255 motion to attack his conviction. He argues the Cuyler rule is not applicable to his Sixth Amendment claim because the conflict of interest created by issuance of the subpoena was "put upon" his counsel by the government's actions. He reasons that the government's conduct is sufficiently "egregious" to bring it within the operation of the per se rule of prejudice. We disagree.

Not all government interference triggers the per se rule. The common thread in cases where the government's conduct was found to be "egregious" is conduct which jeopardizes the integrity of the legal process. Surreptitious eavesdropping by a government agent is illustrative. United States v. Irwin, 612 F.2d 1182, 1189 n. 18 (9th Cir.1980) (citing United States v. Orman, 417 F.Supp. 1126 (D.Colo.1976)). By intercepting confidential communications made between an attorney and his client, the prosecution circumvents the adversarial process. See United States v. Davis, 646 F.2d 1298, 1303 n. 8 (8th Cir.), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981); United States v. Gartner, 518 F.2d 633, 637 (2nd Cir.) (pre-Cronic case expressing similar justification for presuming

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prejudice), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975). As the Court said in Cronic, "if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated." 466 U.S. at 656-57, 104 S.Ct. at 2045-46. That guarantee, the Court defined, was that every defendant would be "assure[d]...

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