Auclair, In re
| Decision Date | 01 May 1992 |
| Docket Number | No. 92-1116,92-1116 |
| Citation | 961 F.2d 65 |
| Parties | 35 Fed. R. Evid. Serv. 607 In re Grand Jury Proceedings Jean AUCLAIR. Victor Feazell, Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E.G. Morris and David L. Botsford, Austin, Tex., for appellant.
Richard Alan Anderson, Dallas, Tex., for amicus, Texas Crim. Defense Lawyers Ass'n.
Gerald H. Goldstein, Goldstein, Goldstein & Hilley, San Antonio, Tex., for amicus, Nat. Ass'n. of Crim. Defense Lawyers.
Mark R. Stelmach, Kelly Loving, Richard L. Durbin, Asst. U.S. Attys. and Ronald F. Ederer, U.S. Atty., Austin, for appellees.
Appeal from the United States District Court For the Northern District of Texas.
Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.
Victor Feazell appeals an order requiring Charles Burton, his attorney, to testify before a grand jury about conversations with Feazell and rejecting Feazell's invocation of the attorney-client privilege. Concluding that a valid attorney-client privilege exists, we reverse.
The facts underlying this appeal bear a close recounting. This matter arises out of an ongoing criminal proceeding. On July 2, 1991 a federal grand jury in the Western District of Texas indicted Jean Auclair for mail fraud and for false declarations to a federal court. Auclair was accused of participating in a scheme involving a fraudulent lease between herself and Joseph V. Giffuni, and she was accused of committing perjury in a civil action to enforce the lease against Giffuni's estate. Auclair testified in that trial that Giffuni signed the lease in her presence in Feazell's law office. Upon conclusion of the trial the government sought and obtained the indictment.
Auclair moved to recuse Judge Walter Smith of the Western District of Texas on the grounds that Feazell was a material witness in the criminal controversy regarding the Giffuni lease and that Judge Smith had testified in a prior trial that Feazell's reputation for truthfulness was bad. That testimony had received wide coverage in the local Waco press. Feazell's involvement in the Auclair case included: (1) drafting the Giffuni lease; (2) testifying in the lease litigation that Giffuni had executed the lease in his presence; and (3) having his secretary, Diane Sanders, type the lease and, allegedly on his instructions, perjuriously testify that Giffuni had signed the lease in Feazell's office. Judge Smith recused himself and transferred the case to the Northern District of Texas. It was assigned to Judge Jerry Buchmeyer.
On December 9, 1991 an FBI agent served a grand jury subpoena on Feazell's secretary, commanding her appearance before the grand jury investigating the Auclair matter. She immediately called Feazell in Austin from her home in Waco. Feazell explained her obligations under the subpoena and offered to retain an attorney to advise and represent her. Her husband, Mike Sanders, joined the conversation and demanded that Feazell get an attorney for his wife who "wasn't going to jail for anyone." That afternoon they went to Feazell's home. Feazell attempted to contact Roy Minton, an attorney who previously had represented him, but Minton was not available. Feazell arranged an appointment with Charles Burton, one of Minton's law partners, for the following Friday.
The following mise-en-scene is based on the testimony of Diane and Mike Sanders and Burton at a hearing before Judge Buchmeyer on February 7, 1992. On December 13, 1991 Feazell and Diane and Mike Sanders journeyed together to Burton's office for the appointment Feazell had arranged. The four met and conferred as a group. Feazell gave Burton an account of the "facts" of the situation. Burton then met with both Sanders together and then with each separately. Finally he met separately with Feazell. When Burton met with Diane Sanders alone she first sought assurances that he would hold their discussions in confidence. Receiving this assurance, she told Burton that Feazell had been lying and she then told Burton the "truth." When Burton met with Mike Sanders alone he told Burton that his wife's account was the "truth." After each Sanders met with Burton, Feazell asked about their discussion. Neither was forthcoming; Diane Sanders said she had confirmed Feazell's account and Mike Sanders said they spoke only about the Sanders' marriage. Burton declined to discuss his separate conversation with Feazell. After the round of separate interviews, Burton informed Diane and Mike Sanders that he could not represent either of them because of potential conflicts.
Shortly after the meeting with Burton, Diane Sanders was arrested by the FBI. The record before us does not reflect the charge. She attempted to contact Burton and then retained Joe Lehman as her counsel. The next day she was hospitalized for a stress-related problem which required immediate surgery. While she was recuperating, she and her husband signed a form purporting to waive any attorney-client privilege existing between them and Burton. Diane Sanders also gave the FBI a statement in which she admitted that she had lied in the civil trial about the signing of the Giffuni lease.
Following these developments, the federal prosecutor sought to question Burton about the conversations during the meeting on December 13, 1991 with the Sanders couple and Feazell. Burton declined to answer those questions, asserting the attorney-client privilege. The prosecutor responded with a subpoena for Burton to appear in Waco on February 11, 1992 before the Western District grand jury investigating Auclair. Apparently the prosecutor informed Judge Buchmeyer that Burton would likely invoke the attorney-client privilege in his appearance before the grand jury. On February 5, 1992 the court caused Burton, Feazell, Mike and Diane Sanders, and their counsel to be notified of a hearing to be held in Dallas on February 7, 1992. Burton's attorney inquired as to the nature of the hearing but was given no information. No pleadings were filed; no oral advice was given by the prosecutor or court personnel.
As the February 7, 1992 hearing began Feazell's attorney inquired of the court: "May I respectfully ask the Court what we are proceeding on so that I know what I'm required to do?" The court responded by first referring to a non-existent government motion and then stated, albeit a bit vaguely, that there had been an assertion of attorney-client privilege. The prosecutor interrupted with an explanation of the proceedings--Burton had been subpoenaed to appear before a grand jury in Waco, he was expected to invoke the attorney-client privilege when questioned, Judge Buchmeyer's court, to which the matter had been referred after Judge Smith recused, was 100 miles distant from the grand jury, thus presenting an inconvenience when and if Burton declined to answer and a motion to compel was needed. With this the hearing proceeded. Diane Sanders and Burton testified. Burton's counsel urged the court to conduct an in camera examination of Feazell, suggesting that such a discussion would clearly show Feazell's expectation that his meeting with Mike and Diane Sanders and Burton would result in Burton representing all three of them. The district court rejected the proposal.
After hearing arguments of counsel the court ruled that Burton was obliged to testify to the grand jury about the contents of his separate conversation with Diane Sanders on December 13, 1991, as well as to the conversation when he and Feazell and the two Sanders met jointly. The court held that Diane Sanders had waived her attorney-client privilege for her separate interview and that any one of the three could waive the privilege for the joint discussions. Finally, the court stated that there was no evidence of a joint defense agreement and even if there had been the court's ruling would be the same.
An order issued in accordance with this ruling and the court declined to stay the order pending appellate review. On emergency motion by Feazell we granted a stay and expedited his appeal of that portion of the order directing Burton to testify about the pre-representation interview with Burton in the presence of Diane and Mike Sanders on December 13, 1991. The National Association of Criminal Defense Lawyers was permitted to file an amicus brief because of the importance of the issue presented.
At the threshold we note serious concern about the juridical basis, nature, and format of the February 7, 1992 proceedings which resulted in the order which is the subject of this appeal. We find no motion or other filing by the government invoking the court's preemptive intervention in the anticipated reluctance of an attorney to testify about matters told to the attorney by a client. Efforts by counsel to learn of the nature of the proceedings, which the affected persons were notified by telephone to attend, were either rebuffed or ignored. We are told that the driving force was the desire of the United States Attorney to avoid an inconvenience or delay in a grand jury investigation. It ought to be manifestly apparent that the mere present or potential inconvenience to the United States Attorney, a federal grand jury, or, for that matter, the court, is not an adequate basis for abrogation of fundamental due process tenets, the Federal Rules of Criminal Procedure, or local court rules. In re Medrano, 956 F.2d 101 (5th Cir.1992).
The Federal Rules of Criminal Procedure permit motions to be made orally or in writing. Fed.R.Crim.P. 47 requires the motion to state the grounds upon which it is made and the relief sought. Fed.R.Crim.P. 45(d) requires that written motions be served not less than five days before the time specified for the hearing. The Local Rules of the Northern District of Texas stipulate that "motion practice in civil and criminal cases is controlled by the Uniform Requirements on Motion Practice" and Local Rules 5.1-5.5. The...
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