Grand Jury Proceedings, In re
| Decision Date | 02 March 1990 |
| Docket Number | No. 88-5056,88-5056 |
| Citation | 896 F.2d 1267 |
| Parties | 29 Fed. R. Evid. Serv. 951 In re GRAND JURY PROCEEDINGS. Sam RABIN, Witness-Appellee, v. UNITED STATES of America, Movant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Leon B. Kellner, U.S. Atty., Mayra Reyler Lichter, Michael P. Sullivan, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for movant-appellant.
Arthur Joel Berger, Miami, Fla., for witness-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, VANCE *, Circuit Judge, and PITTMAN **, Senior District Judge.
Samuel Rabin, appellee, received a subpoena duces tecum from a grand jury investigating the activities of his former client, Armando Garcia. The subpoena ordered Rabin to appear before the grand jury and to produce certain documents relating to the amount of fees Garcia paid Rabin during the investigation and trial of pending federal criminal charges. Rabin moved the district court to quash the subpoena, and the court granted that motion. The Government now appeals. We reverse and remand.
This appeal arises out of the highly visible prosecution of seven Miami police officers known as the "River Cops." An intensive investigation by the Dade County State Attorney's Office culminated in the filing of an information in the Dade County Circuit Court on December 27, 1985. The information contained various RICO, drug-trafficking, and larceny charges against six of the officers. One of those officers, Armando Garcia, was Rabin's client. Apparently, during the investigation, Garcia had contacted Rabin for the purpose of hiring Rabin to provide a defense against the forthcoming charges. In March 1986, another defendant was added.
In May 1986, the State Attorney's Office turned the investigation over to the United States Attorney's Office for the Southern District of Florida. On June 12, 1986, a federal grand jury returned an indictment against the seven officers, charging them with RICO, drug-trafficking, and civil rights violations. Simultaneously, the State Attorney's Office, citing the federal government's involvement in the case, made public a nolle prosse report. The grand jury continued its investigation into the activities of the seven officers by issuing subpoenas for additional financial records, and on September 4, 1986, it returned a superseding indictment against the officers that also contained tax evasion charges against three of the officers. Garcia was one of the four officers not indicted at that time for tax evasion.
The tax evasion charges were severed from the original charges, and the case went to trial on the RICO, drug-trafficking, and civil rights charges on September 29, 1986. The trial lasted fifteen weeks and resulted in a mistrial when the jury failed to reach a unanimous verdict. In February and March 1987, all of the officers' attorneys, including Rabin, filed motions to withdraw as counsel, and those motions were granted. The court appointed new attorneys for those officers who requested counsel and appointed standby attorneys for those officers who did not request counsel.
The Government elected to retry the case on the pending charges, and the grand jury continued its investigation into the officers' activities. As part of its continuing investigation into possible tax evasion and failure to file income tax returns, the grand jury issued subpoenas duces tecum to the four former attorneys of those officers who had not been charged with tax evasion in the 1986 superseding indictment. Thus, Rabin was among those attorneys subpoenaed. The subpoenas commanded the attorneys to appear before the grand jury and to produce
[a]ny and all records pertaining to fees paid by or for [the officer-defendant] during the period of January 1, 1985 to the present including but not limited to:
1. Receipts.
2. Copy of remittance checks.
3. Accounts receivable ledgers/journals.
4. IRS forms 8300.
5. Deposit tickets.
6. Invoices.
7. Correspondence relating to fee.
The four attorneys jointly moved to quash the subpoena, arguing that enforcement of the subpoena would intrude on the attorney-client privilege, violate the officers' sixth amendment right to counsel, and constitute an abuse of the grand jury. The four officers moved to intervene, but only two were allowed to do so: Garcia's motion to intervene was denied. The district court received written briefs and heard oral argument on the motion to quash the subpoenas and, in a memorandum opinion, granted the motion. See In re Williams, 717 F.Supp. 1502, 1510 (S.D.Fla.1987). The court based its decision on the last link doctrine of the attorney-client privilege, holding that, under In re Grand Jury Proceedings (Jones), 517 F.2d 666, 670 (5th Cir.1975) 1 and its progeny, the requested information might constitute "the [last] link in the Government's proof of the [officers'] unexplained wealth." 717 F.Supp. at 1510. The court reserved decision on the other arguments advanced in support of quashing the subpoenas. Id. at 1503. The Government appeals the court's order with regard to the subpoena issued to Rabin.
We think that the district court misapplied the last link doctrine to the information in Rabin's possession and that the attorney-client privilege does not shield the requested information from discovery by the grand jury. Because we hold that the attorney-client privilege cannot support Rabin's motion to quash the subpoena, we must address the other arguments advanced in support of that motion. Accordingly, we hold that Rabin's sixth amendment claim is not yet ripe for judicial determination and that Rabin lacks article III standing to raise that claim. Furthermore, we hold that enforcement of the subpoena does not constitute an abuse of the grand jury. We therefore reverse the district court's order quashing the subpoena and remand the case for further proceedings.
In part II, we address the district court's holding that the requested information is protected by the attorney-client privilege. In part III, we discuss why article III and prudential concerns prevent the litigation and determination of Rabin's sixth amendment claim. Finally, in part IV, we explain why enforcement of this subpoena does not constitute an abuse of the grand jury.
When determining the reach of the attorney-client privilege, we look to "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. From those principles, we learn that the attorney-client privilege--the oldest of the confidential communication privileges--exists "[i]n order to promote freedom of consultation of legal advisers by clients." 8 J. Wigmore, Evidence Sec. 2291, at 545 (McNaughten rev. ed. 1961); see United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987). Sound legal advice and advocacy depend upon full and frank communication between attorney and client. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). The attorney-client privilege, however, is inconsistent with the goal of discovering the truth at trial and, therefore, "ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." United States v. Pipkins, 528 F.2d 559, 563 (5th Cir.1976) (quoting In re Horowitz, 482 F.2d 72, 81 (2d Cir.) (quoting in turn 8 J. Wigmore, supra Sec. 2291, at 554), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973)), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976).
In light of these principles, courts have been careful to define "communication" between attorney and client to include only those verbal statements or physical acts that the client intends as information regarding the "subject matter" of his problem. See, e.g., Modern Woodmen of Am. v. Watkins, 132 F.2d 352, 354 (5th Cir.1942); see also 8 J. Wigmore, supra Sec. 2306, at 590. Thus, courts have distinguished between underlying facts--facts existing independently of any communication between the attorney and client--and communications about those facts, extending the privilege to the latter but not the former. See, e.g., Upjohn Co., 449 U.S. at 395-96, 101 S.Ct. at 685-86; see also C. Wolfram, Modern Legal Ethics 261 (1986).
This brings us to the last link doctrine. Because courts generally refuse to extend the privilege to underlying facts, the identity of an attorney's client has rarely been held to be a privileged communication. See generally 8 J. Wigmore, supra Sec. 2313, at 609-10. The Ninth Circuit, however, in Baird v. Koerner, 279 F.2d 623 (9th Cir.1960), announced a notable exception to this general rule. In Baird, several clients, who apparently believed they had underpaid their federal taxes, retained the services of an attorney for the purpose of making an anonymous payment to the IRS. The attorney sent a cashier's check, along with a letter explaining the situation, to the IRS. An IRS special agent then requested the identities of the attorney's clients, but the attorney refused to divulge their identities, arguing that those identities constituted confidential communications protected by the attorney-client privilege.
The Ninth Circuit agreed with the attorney. In an oft-quoted passage, the court noted that
[t]he names of the clients are useful to the government for but one purpose--to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The volunteer nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt...
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