Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, In re

• Decision Date: 06 March 1991
• Docket Number: J,90-2992,REYES-REQUEN,U,Nos. 90-2827,91-2058,s. 90-2827
• Citation: 926 F.2d 1423
• Parties: , 32 Fed. R. Evid. Serv. 472 In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristoohn Doe, Intervenor-Appellant. In re GRAND JURY SUBPOENA FOR Mike DeGUERIN Mike DeGuerin, Appellant, and John Doe, Intervenor-Appellant. In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT, Jose Evaristonited States of America, Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1423

926 F.2d 1423

59 USLW 2618, 32 Fed. R. Evid. Serv. 472

In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristo REYES-REQUENA, John Doe Intervenor-Appellant In re GRAND JURY SUBPOENA FOR Mike DeGUERIN Mike DeGuerin, Appellant and John Doe, Intervenor-Appellant In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT, Jose Evaristo REYES-REQUENA, United States of America, Appellant.

Nos. 90-2827, 90-2992, 91-2058.

United States Court of Appeals, Fifth Circuit.

March 6, 1991.

Charles O. Grigson, Austin, Tex., for John Doe in Nos. 90-2827, 90-2992, 91-2058.

Henry K. Oncken, U.S. Atty., Paula C. Offenhauser, Larry Finder, Asst. U.S. Attys., Houston, Tex., for appellees.

Gerald Goldstein, Antonio, Tex., for amicus NACDL.

Jack B. Zimmerman, Houston, Tex., for amicus ATLA.

Kent Shaffer, Houston, Tex., for amicus TCDLA.

Jim E. Levine, Houston, Tex., for amicus HCCLA.

Dick DeGuerin, Houston, Tex., for appellant in No. 90-2992.

Ronald G. Woods, U.S. Atty., Paula C. Offenhauser, Lawrence D. Finder, Asst. U.S. Attys., Mervyn Hamburg, Washington, D.C., for appellant in No. 91-2058.

Dick DeGuerin, Houston, Tex., for appellee in No. 91-2058.

Appeals from the United States District Court for the Southern District of Texas.

Before HENLEY, ^* KING and GARWOOD, Circuit Judges.

KING, Circuit Judge:

In September 1990, we reversed a ruling by the district court granting a motion to quash a subpoena requiring defense attorney Mike DeGeurin (DeGeurin) to reveal the identity of an anonymous third party benefactor who paid the attorney's fees for drug defendant Jose Evaristo Reyes-Requena (Reyes-Requena). See In re Grand Jury Subpoena For Attorney Representing Criminal Defendant Jose Evaristo Reyes-Requena (Mike DeGeurin), 913 F.2d 1118 (5th Cir.1990), cert. pending (Reyes-Requena I ). In so ruling, we concluded that "[n]othing in the record reflects that this information was either a confidential communication between DeGeurin and Reyes-Requena or inescapably tied to such a communication...." Id. at 1122. After remand, the Government obtained a new subpoena directing DeGeurin to appear before the grand jury and reveal the identity and fee arrangements made by the third party benefactor. The anonymous third party benefactor intervened as "Intervenor John Doe" (Intervenor). Intervenor moved to quash the subpoena and for an in camera, ex parte hearing to establish the existence of an on-going attorney/client relationship with DeGeurin that existed prior to DeGeurin's representation of Reyes-Requena and that would be breached by the requested revelations.

The district court denied DeGeurin's and Intervenor's motions to quash and for an in camera, ex parte hearing. DeGeurin and Intervenor appeal from this ruling. DeGeurin appeared before the grand jury and revealed the identity and fee arrangements made for Reyes-Requena by a non-client third-party, but DeGeurin refused to reveal Intervenor's identity or the fee arrangements Intervenor made for Reyes-Requena. The Government moved to hold DeGeurin in civil contempt under the recalcitrant witness statute, 28 U.S.C. Sec. 1826.

At this juncture, the district court provided DeGeurin and Intervenor with their requested in camera, ex parte hearing, and concluded that the documents submitted under seal revealed the existence of an attorney/client relationship prior to DeGeurin's representation of Reyes-Requena. The district court denied the Government's motion to hold DeGeurin in contempt. See In re Grand Jury Subpoena For Reyes-Requena, 752 F.Supp. 239 (1990) (Reyes-Requena II ). Because we agree with the district court that the revelation of Intervenor's identity and fee arrangements would breach confidential communications that are intertwined inextricably with Intervenor's confidential purpose for retaining DeGeurin's services, we affirm.

I. BACKGROUND AND PROCEDURE

Federal and local drug agents were conducting surveillance on a house in Houston, Texas when they saw two individuals load boxes into a rental car. One of those persons drove off and the other entered the house. Officers stopped the car, found cocaine, and arrested the driver. The officers then obtained and executed a search warrant for the house. Inside the house, the officers found about 160 kilograms of cocaine and various drug paraphernalia. The officers discovered Reyes-Requena sleeping on the living room floor with a loaded .357 magnum under his bedroll. The officers also found a woman named Guadelupe and a small boy.

After being advised of his rights, Reyes-Requena told a Drug Enforcement Agency officer that he had arrived from Matamoros, Mexico, two months before; that he was unemployed; that he had met an individual whom he called "Chapa;" and that Chapa had offered him the use of the house, food, and money if he would safeguard the house. Reyes-Requena refused to give a physical description of Chapa other than identifying him as a Hispanic male. Reyes-Requena admitted that he had seen boxes coming in and out of the house, but he denied knowledge of their contents and maintained that he had nothing to do with them. He also denied knowledge of the weapon found under his bedroll. Guadelupe told agents that she met Reyes-Requena in Matamoros, that she came to the United States two weeks before his arrest, and that she stayed at the house at Reyes-Requena's request.

The agents arrested Reyes-Requena, and on September 22, 1989, a magistrate conducted a preliminary hearing. Mike DeGeurin, an experienced criminal lawyer in private practice, represented Reyes-Requena at the hearing despite Reyes-Requena's apparent indigence. On that same day, a federal grand jury in the Southern District of Texas subpoenaed DeGeurin to appear on September 29, 1989, and produce records concerning his fee arrangements for representing Reyes-Requena. The grand jury requested information concerning whether a third party hired DeGeurin to represent Reyes-Requena, and if so, the identity of the fee payer and nature of the fee agreements. Six days later, DeGeurin filed a motion to quash the subpoena. He argued that the requested disclosure violated Department of Justice Guidelines, both his and Reyes-Requena's sixth amendment rights, and the attorney/client privilege. Amici curiae representing various defense-oriented organizations moved to intervene in support of DeGeurin. In a supplemental motion, DeGeurin argued that the subpoena violated Reyes-Requena's fifth amendment privilege against self-incrimination because of the "affirmative link" or "last link" doctrine. See In re Grand Jury Proceedings (United States v. Jones), 517 F.2d 666, 674 (5th Cir.1975) (attorney/client privilege attaches to matters such as identity of client and fee information when so much of the substance of the communications is already in the Government's possession that additional disclosures would yield substantially probative links in an existing chain of inculpatory evidence).

At an October 2 hearing, DeGeurin identified Reyes-Requena as his client, and refrained from referring to the existence of a third party benefactor. DeGeurin argued that because Reyes-Requena was merely present in the house, and the government had to prove an intent to distribute, information concerning his attorney's fees could help to incriminate him or even lead to a conspiracy charge. DeGeurin also argued that revelation of this information would violate Reyes-Requena's attorney/client privilege, violate Reyes-Requena's sixth amendment rights, and would be unduly burdensome and harassing under F.R.Crim.P. 17(c). The district court agreed, quashed the subpoena, and the Government appealed. See Reyes-Requena I, 724 F.Supp. 458 (S.D.Tex.1989).

The district court gave three reasons for quashing the first grand jury subpoena: (1) that non-disclosure was protected by the attorney/client privilege, (2) that compliance with the subpoena would be unreasonable or oppressive under F.R.Crim.P. 17(c), and (3) that the subpoena threatened to create a conflict of interest that would deprive Reyes-Requena of his sixth amendment right to counsel of his choice. Id. at 464. After the district court's order quashing the subpoena, but before we disposed of Reyes-Requena's appeal, Reyes-Requena was convicted of possession with intent to sell in excess of five kilograms of cocaine and was sentenced to fifteen years in the federal penitentiary. We acknowledged that the subpoena, issued while DeGeurin was attempting to defend Reyes-Requena, may have been oppressive and unreasonable, but we concluded that this issue had been mooted because of Reyes-Requena's conviction while his appeal was pending. Reyes-Requena I, 913 F.2d at 1129. We also concluded that Reyes-Requena's conviction mooted the district court's sixth amendment grounds for quashing the grand jury subpoena. Id. Finally, we found no impingement of the attorney/client privilege because DeGeurin never averred "that the anonymous benefactor (if there was one) was his client...." Id. at 1123. We observed that "[n]othing in the record reflect[ed] that this information [sought by the grand jury] was either a confidential communication between DeGeurin and Reyes-Requena, or inescapably tied to such a communication...." Id. at 1122.

After remand, the Government obtained a new subpoena directing DeGeurin to appear before the grand jury. DeGeurin again moved to quash the subpoena. DeGeurin now contended that he should not be required to divulge the identity of, and fee arrangements made with, an anonymous, fee-paying benefactor of Reyes-Requena who, as the district court found, was DeGeurin's client. The anonymous benefactor then intervened in the suit as Intervenor John Doe.

DeGeurin and Intervenor requested an in camera, ex parte hearing to establish the existence and nature of their attorney/client relationship. DeGeurin argued that if he were forced to go before the grand jury, he...