U.S., In re

• Decision Date: 14 June 1989
• Docket Number: No. 89-2463,89-2463
• Citation: 878 F.2d 153
• Parties: In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 153

878 F.2d 153

In re UNITED STATES of America, Petitioner.

No. 89-2463.

United States Court of Appeals Fifth Circuit.

June 14, 1989.

John R. Braddock, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for petitioner.

David Berg, Cheri Duncan, Lynn Hughes, U.S. Dist. Judge, Houston, Tex., for respondent.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before RUBIN, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

In this case, the government has applied for a writ of mandamus directing the district court to set aside a pretrial order in a pending criminal case providing for the defense to take, ex parte, the discovery deposition of a witness. On the government's motion, we previously stayed the taking of the deposition, which had been scheduled for the following day, in order that we might more fully consider the matter and have the benefit of briefing by both the government and the defense. After considering the briefs and supporting exhibits, we now determine that the government is entitled to the relief sought.

The defendants below are Philip S. Noons and Thomas F. Noons. They were apparently originally named in a criminal complaint filed February 7, 1989, and an indictment was returned against them in the court below on March 8, 1989. The indictment charged violations of 18 U.S.C. Secs. 371, 657, and 1001. It alleged that Philip Noons had been employed by Mainland Savings Association (Mainland) in Houston, Texas, whose deposits were insured by the Federal Savings and Loan Insurance Corporation (FSLIC) until it was closed by the FSLIC on or about April 4, 1986. The FSLIC acted as receiver for Mainland from approximately May 1, 1986 through approximately August 5, 1988, and during that time Philip Noons was employed as an asset manager with the FSLIC in its capacity as receiver for Mainland. It was alleged that Philip Noons and his brother Thomas Noons conspired to make false statements to and defraud the FSLIC, as Mainland's receiver, by causing it to sell, for less than fair value, an asset of Mainland's to an entity controlled by C. Marshall Rea (Rea). It was further alleged that the Noonses secretly furnished Rea's entity some of the funds that it used to purchase this asset, and that Philip Noons misrepresented to the FSLIC officials making the decision to sell what the asset was worth. The asset in question was an installment note from a third party. The sale of the asset apparently occurred in March 1988, but the conspiracy allegedly continued thereafter and until the time of the indictment, and included efforts to secretly transfer some of the collections on the note to the Noonses.

On April 3, 1989, the Noonses filed in the district court a motion to dismiss the indictment or to suppress evidence. In this motion, they alleged that Rea was their lawyer and that the government, with Rea's cooperation, had secretly recorded both telephone and face-to-face conversations between Rea and the Noonses, and that the recording and the disclosure to the government of these conversations were violations of the Noonses' attorney-client privilege and an invasion of their rights under the Fifth and Sixth Amendments. It was alleged that the indictment resulted from these recordings. The motion requested that the court conduct a pretrial hearing to determine whether the prosecution obtained information for the indictment from Rea by thus invading the privileged confidential communications between attorney and client, stating that such procedure was approved by this Court in United States v. Fortna, 796 F.2d 724 (5th Cir.1986). The motion then requested that "upon hearing" the court accordingly dismiss the indictment or, alternatively, disqualify Rea as a witness against the Noonses and suppress all evidence obtained from or by Rea against them.

On April 14, the government filed its response to the motion to dismiss the indictment or suppress evidence, asserting that the recordings of the conversations with Rea had all taken place before the criminal complaint was filed, and that there was no attorney-client privilege because the communications in question were not for a legal opinion, or legal services, or assistance in a legal proceeding, but were rather simply for business advice or to procure Rea to act as a disburser of money or property, and also that they were for the purpose of furthering an intended, present, or continuing illegality.

In the meantime, the Noonses, on April 11, had filed their motion to take Rea's deposition ex parte and under seal for the purpose of questioning him regarding his relationship with the Noonses, what he told the government about the Noonses, and "all matters pertinent to this case." This motion recited that Rea's lawyer had informed the Noonses' defense counsel that Rea refused to be interviewed by the Noonses' counsel unless the Assistant United States Attorney was also present. ¹ This motion also asserted that the deposition should be ex parte in order to preclude further invasions of the Noonses' attorney-client privilege with Rea. The government responded to the motion to take Rea's deposition on April 17, pointing out that Rule 15, Fed.R.Crim.P., did not authorize discovery depositions, and that there was no suggestion that Rea would be unavailable either for trial or for any pretrial hearings, and that there was also no authority for ex parte depositions under any circumstances.

On May 1 or 2, the Noonses filed their response to the government's reply to their motion to take Rea's deposition. In this pleading, the Noonses reiterated their allegation that Rea's counsel had informed their counsel that Rea would not talk to the defense unless the Assistant United States Attorney was also present; they also asserted that this precluded them from developing "an 'advice of counsel' defense." In this pleading, the Noonses further acknowledged that on April 28, 1989, the Assistant United States Attorney had turned over to them the various tape recordings of Rea's challenged conversations with the Noonses (it appears that these conversations took place between October 4, 1988 and February 7, 1989). The Noonses further contended in this pleading that even if the deposition were not authorized under Rule 15, the court had the inherent power to order it.

On May 2, a nonevidentiary hearing was held before the district court on the Noonses' motion to take Rea's deposition. The next day, the district court entered the following brief order which is the subject of this mandamus allegation, viz.:

"C. Marshall Rea is compelled to testify under oath without the government present for the limited purpose of discovery; the deposition shall remain sealed until further order of this court."

Subsequently, the deposition was scheduled for May 11, 1989.

It appears that at the time of the May 2 hearing, trial on the merits in the case had been set for the following week, but at that time the district court canceled that setting and, as we understand it, the case has not been reset for trial. Apparently, a hearing on the Noonses' motion to dismiss the indictment or suppress evidence is not set, and has never been set.

The district court's order makes no findings and recites no reasons or source of authority for the action taken. Its remarks at the May 2 hearing likewise contained no findings or indication of authority for the order. However, they do indicate some of the district court's concerns. In addressing the Assistant United States Attorney, the court stated that "this is simply a way of getting a compulsory statement from the witness under oath. And you [the government] have the ability to do that [presumably by subpoenaing the witness before the grand jury], the defendants don't." In a similar vein, the court remarked that a defendant "ought to have at least partially the same technique available to him that the government has available to it [presumably referring to use of the grand jury], which is a statement, in effect, under oath." The court also indicated that the defendants needed to engage in this discovery, stating, "[T]hey need to know with some certainty that this is their former lawyer's statement before they can decide whether to waive the entire attorney-client privilege, or any other statute, including pleading guilty."

It is clear that the district court's order is not authorized by Rule 15(a). That rule is limited to depositions taken so that testimony may be "preserved for use at trial." Id. It does not authorize depositions for discovery purposes, as the authorities uniformly recognize. We stated in United States v. Fischel, 686 F.2d 1082, 1091 (5th Cir.1982), "[d]epositions are not discovery tools in criminal cases." See also Application of Eisenberg, 654 F.2d 1107, 1113 n. 9 (5th Cir.1981) ("[i]n criminal cases, depositions are not intended as discovery devices"); Simon v. United States, 644 F.2d 490, 498 n. 12 (5th Cir.1981). Other circuits are in accord. See United States v. Troutman, 814 F.2d 1428, 1453 (10th Cir.1987); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); United States v. Hutchings, 751 F.2d 230, 236 (8th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985); United States v. Steele, 685 F.2d 793, 809 (3d Cir.), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982); Wright, Federal Practice and Procedure: Criminal Sec. 241 at 4 & n. 7 (2d ed.). Nor can the deposition be authorized under Rule 16, Fed.R.Crim.P. That rule does not mention depositions, which are plainly to be governed by Rule 15. Moreover, Rule 16, by its terms, does not authorize discovery of statements of third-party prospective government witnesses, apart from certain exceptions not relevant here, see Rule 16(a)(2), and Congress rejected a proposed 1974 amendment to Rule 16 which would have authorized discovery of the names and addresses...