U.S. v. White

• Citation: 281 U.S. App. D.C. 39,887 F.2d 267
• Decision Date: 10 October 1989
• Docket Number: 89-3027,Nos. 89-3022,s. 89-3022
• Parties: , 28 Fed. R. Evid. Serv. 1486 UNITED STATES of America v. William H. WHITE, Sr., Appellant. UNITED STATES of America v. Lester H. FINOTTI, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 267

887 F.2d 267

281 U.S.App.D.C. 39, 28 Fed. R. Evid. Serv. 1486

UNITED STATES of America v. William H. WHITE, Sr., Appellant.

UNITED STATES of America v. Lester H. FINOTTI, Jr., Appellant.

Nos. 89-3022, 89-3027.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 19, 1989.

Decided Oct. 10, 1989.

Appeals from the United States District Court for the District of Columbia (CR. Nos. 88-0286-02 and 88-0286-01).

David P. Towey, with whom Plato Cacheris and Barbara Rowland, Washington, D.C. were on the brief, for appellant in No. 89-3022.

Sean Connelly, Washington, D.C. (appointed by this Court), for appellant in No. 89-3027.

Amy L. Wax, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., Washington, D.C., was on the brief for appellee. John R. Fisher, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before EDWARDS, RUTH BADER GINSBURG, and SILBERMAN, Circuit Judges.

RUTH BADER GINSBURG, Circuit Judge:

Judgments of conviction stemming from a government officer's relationship with a private firm are the subject of these appeals. Defendant-appellant William H. White, Sr., was President and sole shareholder of Southern Investment Company (Southern). Defendant-appellant Lester H. Finotti, Jr., was a branch chief of the Office of Transportation Audits of the United States General Services Administration (GSA). White and Southern entered into a "consulting" arrangement with Finotti, under which Southern made regular monthly payments to Finotti. In exchange for these payments, Finotti used his GSA position to advance Southern's business interests.

After trial in the federal district court for the District of Columbia, White and Finotti were convicted of conspiring to defraud the United States, 18 U.S.C. Sec. 371. Finotti was also convicted of bribery, 18 U.S.C. Sec. 201(c), three counts of conflict of interest, 18 U.S.C. Sec. 208, and making a false statement to the United States government, 18 U.S.C. Sec. 1001.

White contends on appeal that the district court improperly admitted highly prejudicial evidence of a privileged communication from his attorney. White also asserts that the prosecutor, in his closing argument, improperly alluded to the wealth of White and Southern. Finotti challenges his bribery conviction for lack of venue. He contests his convictions for conflicts of interest as inconsistent with the statute and barred by double jeopardy, and he assails his false statement conviction as impermissible under the "exculpatory no" doctrine and the fifth amendment. Finotti also argues that his conviction on all counts should be overturned because the trial court improperly permitted cross-examination of a character witness with hypotheticals that assumed Finotti was guilty of the crimes for which he was on trial. Finally, both defendants contend that the prosecutor constructively amended the indictment by arguing in his summation that the alleged conspiracy to defraud the United States was a conspiracy to receive bribes.

We reverse White's conviction because a central piece of evidence against him was protected by the attorney-client privilege. ¹ We reverse Finotti's conviction for bribery because venue was not proper in the District of Columbia. We affirm Finotti's convictions for conspiracy, conflicts of interest, and making a false statement to the United States government.

I. BREACH OF WHITE'S ATTORNEY-CLIENT PRIVILEGE

White's principal defense to the charges against him was a general denial of criminal intent. Finotti initially advanced the specific defense that he had relied on the advice of White's counsel. As the trial unfolded, Finotti asserted more definitively that he had been tricked into the agreement at issue by White and White's counsel, Hubert N. Cannon, Jr. In support of this defense, Finotti introduced evidence that during a meeting on the morning of March 1, 1985, Cannon stated that the consulting arrangement would be legal if approved by Finotti's superiors. The government then introduced, over White's objection, evidence that Cannon told White later that day that the arrangement would be illegal even if Finotti had superior officer approval.

The district court allowed this prosecution evidence on alternative bases. First, the court held that Finotti's introduction of counsel's unprivileged morning statements "opened the door" to introduction of the counsel's privileged afternoon conversation. See United States v. Lester H. Finotti, Jr., William H. White, Sr., Carmine DePietro, 701 F.Supp. 830 (D.D.C.1988) (Memorandum and Order admitting evidence) (hereafter "Mem. Order"). Second, the court declared that White had waived the privilege either by defending on the ground of lack of criminal intent or by asserting to GSA investigators that his attorneys "had thoroughly reviewed the decision to employ Finotti after ... looking at the matter from nine different ways." Id. at 835. Finally, although the court did not formally do so, it indicated its readiness to overturn an earlier ruling and find that the communications fell under the crime-fraud exception to the attorney-client privilege. See id. at 835; United States v. Lester H. Finotti, Jr., William H. White, Sr., Carmine DePietro, Crim. No. 88-0286, 1988 WL 129723 (D.D.C. Nov. 17, 1988) (Memorandum and Order excluding testimony protected by the attorney-client privilege). None of these rationales, we conclude, can support admission of the evidence.

As to the first ground for the district court's ruling, the trial judge apparently believed that White and Finotti had raised a common defense of "permission," and that Finotti therefore could open the The district court's alternative holding that White waived his attorney-client privilege with regard to the afternoon conversation by putting the government to its proof on the issue of his criminal intent is scarcely more tenable. A rule thus forfeiting the privilege upon denial of mens rea would deter individuals from consulting with their lawyers to ascertain the legality of contemplated actions; it would therefore undermine the animating purpose of the privilege.

door to privileged communications between White and Cannon. In fact, however, the two defendants took discrete positions. White maintained that he reasonably relied on Finotti's representation that Finotti had the permission of superior GSA officers, while Finotti ultimately contended that he had been misled by White and the statements of White's counsel. In any event, precedent in point is clear: Under the circumstances presented, only the privilege-holder, White, could waive the privilege. The prosecution may not gain, through the device of a joint trial, admission against one defendant of otherwise inadmissible evidence on the happenstance that the door to admitting the evidence has been opened by a co-defendant. See United States v. Asher, 854 F.2d 1483, 1499-1500 (3d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989); United States v. Boyce, 849 F.2d 833, 837 (3d Cir.1988); United States v. Jones, 839 F.2d 1041, 1054 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 1999, 100 L.Ed.2d 230 (1988); United States v. Davis, 838 F.2d 909, 916 (7th Cir.1988); United States v. Pearson, 746 F.2d 787, 795-96 (11th Cir.1984); United States v. Figueroa, 618 F.2d 934, 944 (2d Cir.1980). Indeed, the government candidly conceded the district court's misstep by disclaiming reliance on the door-opening rationale in defending this appeal. If the district court believed that the evidence of the morning conversation, while crucial to Finotti's defense, would mislead the jury in White's favor unless clarified by the later conversation, the court should have severed the trials. See Davis, 838 F.2d at 916; Jones, 839 F.2d at 1054; Figueroa, 618 F.2d at 944.

The district court apparently equated White's denial of criminal intent with a reliance-on-advice-of-counsel defense, which would have waived the privilege. Reliance on advice of counsel is an affirmative defense, an assertion more positive and specific than a general denial of criminal intent. To be acquitted for lack of criminal intent, White did not need to introduce any evidence of communications to and from Cannon, and he did not do so. See Brief for the United States at 15. Indeed, White carefully refrained from relying on any statements of counsel and expressly disavowed any intent to rely on an advice-of-counsel defense. Transcript, Vol. IIB at 8-10.

Instead, as earlier stated, White maintained that he believed the arrangement with Finotti was legal because Finotti reported having received permission from his superiors. Transcript, Vol. IIA at 45. White mentioned that Cannon and others were present when Finotti asserted that he had GSA permission to consult for Southern, in part because Finotti had mentioned in his opening statement Cannon's presence at the March 1, 1985 morning meeting. Id. at 36; Transcript, Vol. IIB at 10. But acknowledgement that one's attorney was present during a conversation is not equivalent to affirmative reliance on his advice that one's action is legal.

In fact, to be acquitted for lack of criminal intent, White need not have presented any evidence. Intent is an element of the offense the government must prove. It was White's constitutional right to put the government to its proof on all the elements of the offense. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). To penalize him for exercising this right by holding that he waived his attorney-client privilege would cut short both the privilege and the right.

The district court also erred in concluding that White waived his privilege by his comment during a preliminary GSA investigation that his attorneys "had thoroughly reviewed the decision to employ Finotti after ... looking at the matter from Under the law of this circuit, a defendant can waive his attorney-client...