Grand Jury Proceedings, Des Moines, Iowa, In re

• Decision Date: 08 November 1977
• Docket Number: Nos. 76-2099 and 77-1013,s. 76-2099 and 77-1013
• Citation: 568 F.2d 555
• Parties: In re GRAND JURY PROCEEDINGS, DES MOINES, IOWA. In the Matter of Martha COPLEMAN. Appeal of Frank BLACK HORSE, Intervenor. Appeal of WOUNDED KNEE LEGAL DEFENSE/OFFENSE COMMITTEE, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 555

568 F.2d 555

In re GRAND JURY PROCEEDINGS, DES MOINES, IOWA.

In the Matter of Martha COPLEMAN.

Appeal of Frank BLACK HORSE, Intervenor.

Appeal of WOUNDED KNEE LEGAL DEFENSE/OFFENSE COMMITTEE, Intervenor.

Nos. 76-2099 and 77-1013.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 31, 1977.

Decided Oct. 3, 1977.

Rehearing and Rehearing En Banc Denied Nov. 8, 1977.

William M. Kunstler, (argued), Center for Constitutional Rights, New York City, for appellants in Nos. 76-2099 and 77-1013 and intervenor-appellant, Frank Black Horse in No. 76-2099.

Kenneth E. Tilsen, Tilsen, Tilsen & Quick, St. Paul, Minn., for intervenor-appellant, Wounded Knee Legal Defense/Offense Committee in No. 77-1013 and on brief for appellants in Nos. 76-2099 and 77-1013.

Bruce Ellison, Rapid City, S. D., on brief for appellants in Nos. 77-2099 and 77-1013.

John M. Fitzgibbons, (argued), Asst. U. S. Atty., Des Moines, Iowa, for appellees in Nos. 76-2099 and 77-1013.

George H. Perry (former U. S. Atty.), Des Moines, Iowa, for appellee in No. 76-2099.

Paul A. Zoss (former U. S. Atty.), and James R. Rosenbaum (former U. S. Atty.), Des Moines, Iowa, for appellee in No. 77-1013.

Before ROSS, STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

This is an appeal from an order of the district court ¹ conditionally quashing the subpoena for attorney Copleman to appear before the grand jury, provided that Copleman answer written interrogatories submitted by the United States Attorney or appear in open court for questioning. ² In addition, the American Indian Movement appeals from the district court's denial of its petition for intervention. We affirm the district court's order in its entirety.

Attorney Copleman worked on the staff of the Wounded Knee Legal Defense/Offense Committee in Nebraska, Iowa and South Dakota from January until June of 1975. On May 19, 1975, Copleman's client, Frank Black Horse, failed to appear at his trial on felony charges in the United States District Court for the Southern District of Iowa. ³ Thereafter, Copleman was subpoenaed to testify before a federal grand jury in conjunction with its investigation into the possibility that Black Horse had violated 18 U.S.C. § 3150. ⁴

Copleman filed a motion to quash the subpoena on the grounds, inter alia, that the subpoena threatened to destroy her continuing attorney-client relationship with Black Horse and the questions to be asked did not fall within the narrow exceptions to the attorney-client privilege. On May 18, 1976, a hearing was held in the district court concerning Copleman's motion to quash. During the course of the hearing, Black Horse was allowed to intervene. With regard to the motion to quash, the district court stated:

The grand jury wishes to inquire as to communications between counsel and defendant regarding the time and place of trial to determine whether Mr. Blackhorse knew he had been ordered to appear. Ms. Copleman asserts the attorney-client privilege as the ground for quashing the subpoena.

Such communications are not of a confidential nature and are not protected by the attorney-client privilege.

In addition, the district court noted that Ms. Copleman and other interested parties had argued that the trust that had been built up between the American Indians and defense counsel would be destroyed if Copleman was required to appear and testify in secret before a grand jury. In response to this argument the district court issued the following order to avoid a secret grand jury appearance:

IT IS FURTHER ORDERED that the motion to quash the grand jury subpoena will be granted if Ms. Copleman files in this Court within 10 (ten) days after the filing of this Ruling and Order her consent to answer interrogatories or appear in open court, as she may prefer. If such consent is not filed within such 10 day period, the motion to Quash Subpoena will be denied.

On November 30, 1976, the Wounded Knee Legal Defense/Offense Committee gave notice of an appeal from the district court's order. On December 3, 1976, Frank Black Horse likewise gave notice of an appeal. On December 8, 1976, the United States filed five interrogatories pursuant to the court's order. ⁵ The interrogatories, in essence, ask Copleman whether she or anyone else informed Black Horse of the date that his trial was to commence. Appellants contend that by ordering Copleman to answer the five interrogatories, the district court has invaded the attorney-client relationship. Furthermore, it is argued that before such an invasion is allowed, the government must show a compelling need for the specific information asked of attorney Copleman. We disagree.

Communications by a defense counsel to the client or by a client to the defense counsel regarding the time and place of trial are not confidential and therefore are not protected by the attorney-client privilege. United States v. Freeman, 519 F.2d 67, 68-69 (9th Cir. 1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); United States v. Hall, 346 F.2d 875, 882 (2d Cir.), cert. denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965); United States v. Woodruff, 383 F.Supp. 696 (E.D.Pa.1974).

Furthermore, the government has shown an adequate need for this information. The government submitted an affidavit of Special Assistant United States Attorney Kenneth L. Fields in which he relates a conversation with either Kathy James, a legal worker, or attorney Copleman about whether Frank Black Horse would be available for trial. Either Ms. Copleman or Ms. James told Fields that Black Horse would be at trial. Although this apparent hearsay statement would be admissible before the grand jury, its admissibility in a criminal trial is of considerable doubt. The only other evidence bearing on Black Horse's knowledge of the trial date is a recorded colloquy between Judge Bogue and attorney Copleman on May 19, 1975. In that colloquy, Copleman states that she had recently spoken with Black Horse and that he did say something to indicate that he would be at trial. Copleman refused, however, to indicate exactly what was said based on her belief that it was privileged. Under these circumstances, we feel the government's need for the specific information asked of Copleman was sufficiently compelling. ⁶

Additionally, we are not persuaded by intervenor-appellant Black Horse's argument that the grand jury's subpoena of Copleman violates his Sixth Amendment right to effective assistance of counsel. Black Horse, as well as the Wounded Knee Legal Defense/Offense Committee, contend that if a lawyer can be compelled to reveal to the grand jury information the client provides the lawyer in the course of the attorney-client relationship, the right to effective assistance of counsel will be directly abridged. We think Judge Frankel has aptly appraised the matter when he said:

Lawyers, of all peopl...