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

• Decision Date: 19 September 1990
• Docket Number: REYES-REQUENA,No. 89-6252,89-6252
• Citation: 913 F.2d 1118
• Parties: , 31 Fed. R. Evid. Serv. 1167 In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristo
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1118

913 F.2d 1118

59 USLW 2245, 31 Fed. R. Evid. Serv. 1167

In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL

DEFENDANT Jose Evaristo REYES-REQUENA.

No. 89-6252.

United States Court of Appeals,

Fifth Circuit.

Sept. 19, 1990.

Paula Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Lawrence D. Finder, Asst. U.S. Atty., Houston, Tex., Merv Hamburg, Atty., Dept. of Justice, Appellate Section, Crim.Div., Washington, D.C., for appellee.

Dick DeGeurin, DeGeurin & Nugent, Edward A. Mallett, Houston, Tex., for Mike DeGeurin.

Mike DeGeurin, Foreman, DeGeurin & Nugent, Houston, Tex., for Jose Evaristo Reyes Requena.

Gerald Goldstein, San Antonio, Tex., for amicus curiae, Nat. Ass'n of Crim. Defense Lawyers (NACDL).

Kent A. Schaffer, Houston, Tex., for amicus curiae, Texas Crim. Defense Lawyers Ass'n (TDCLA).

Jack B. Zimmerman, Houston, Tex., Jeffrey R. White, Washington, D.C., Russ M. Herman, New Orleans, La., Mike Starr, Gen. Counsel, Washington, D.C., for amicus curiae, Ass'n of Trial Lawyers of America (ATLA).

Jim E. Lavine, Houston, Tex., for Harris County Criminals Lawyers Ass'n (HCCLA).

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

Before JONES, DUHE and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

We confront here the tension between the requirement that every citizen be prepared to offer his testimony to a grand jury and the entitlement of every criminal defendant to the single-minded attention of his attorney. The U.S. Attorney's office subpoenaed Mike DeGeurin, who had appeared as counsel for Jose Evaristo Reyes-Requena, to testify before a grand jury in the short interval between Reyes-Requena's pretrial detention hearing and his indictment by that same grand jury. DeGeurin moved to quash the subpoena. After a hearing, the district court granted the motion to quash. 724 F.Supp. 458 (S.D.Tex.1989). On the day of oral argument in our court, we issued an order reversing the district court's decision. ¹ Our reasons for doing so require further explanation and a careful chronology of the proceedings to date.

I. THE PROSECUTION OF REYES-REQUENA

When late one evening, federal and state drug agents executed a search warrant on a ranch-type house in Houston, Texas, they observed Reyes-Requena arising from a bedroll on the floor of the living room, with a loaded .357 magnum revolver beneath his sleeping pad. ² A woman and young boy were also in the house. Earlier that day, during surveillance of the property, officers had observed two individuals load boxes into a rental car, after which one person drove off while the other entered the house. The car was apprehended and discovered to contain cocaine. Until the search warrant was executed, no one else was seen entering or leaving the residence.

In the bedroom, the officers found eight U-Haul cartons containing approximately 160 separately wrapped kilogram packages of cocaine. One of the cartons was open. In the kitchen, there was an unloaded .357 magnum revolver and a package containing 1 1/2 ounces of cocaine. A box of ammunition was located a few feet away from Reyes-Requena's bedroll. Drug paraphernalia, including tally sheets, scales, sixteen unfolded U-Haul cartons, and taping materials, were located in closets.

Reyes-Requena was interviewed by an FBI agent after receiving Miranda warnings. According to the agent, Reyes-Requena said 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 Reyes-Requena the use of the house, food and money if he would stay there and safeguard the house and its contents. Reyes-Requena refused to give a physical description of Chapa other than to identify him as a Hispanic male. Reyes-Requena denied any knowledge that the boxes, which he had seen being taken into and out of the house, contained cocaine. He also denied knowledge of the revolver found under his sleeping bag.

Guadelupe, the woman found in the house, told agents that she had met Reyes-Requena in Matamoros, and he had invited her to stay in the house when she arrived from Mexico two weeks earlier. She said she did not know what was in the house and never saw anything there.

In the interim between Reyes-Requena's detention hearing and events pertinent to this matter, Reyes-Requena has been indicted, tried, and convicted of possession of cocaine with intent to distribute and possession of a firearm in the course of committing a felony. See 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 924(c). In oral argument we were informed that Reyes-Requena has been sentenced to fifteen years' imprisonment.

II. MIKE DeGEURIN AND THE GRAND JURY SUBPOENA

A magistrate conducted a preliminary hearing concerning Reyes-Requena on September 22, 1989, four days after his arrest. Mike DeGeurin, an experienced criminal defense counsel in private practice, appeared on the defendant's behalf. The magistrate concluded that the government had demonstrated probable cause to believe that Reyes-Requena had committed an offense, and he set bond at $100,000. The record does not reflect whether Reyes-Requena posted bond.

The same day, a grand jury in the Southern District of Texas issued a subpoena to DeGeurin directing him to appear on September 29 and produce records dealing with the fee arrangement he had made for representing Reyes-Requena.

Events then moved rapidly. DeGeurin filed a motion to quash, supported by his affidavit. Amici curiae representing various organizations moved to intervene and support DeGeurin. ³ Neither DeGeurin nor the government proffered evidence for in camera inspection. The court held argument on the motion to quash on October 2 and thereafter entered an order granting the motion. Reyes-Requena was indicted on October 16.

DeGeurin's affidavit identified Reyes-Requena as his client and, after summarizing the proceedings up to October 2, stated as follows:

The prosecutor now seeks to determine the amount of my fee and the identity of the person who has agreed to pay the fee. It is my opinion and belief that for me to reveal the amount of the fees, how it was paid, fee agreements and whether a third party was involved would violate my client's Fifth and Sixth Amendment rights, would violate his due process rights to a no-bill by the Grand Jury, could provide evidence against my client as an "affirmative link" to the contraband sufficient to assure his indictment and conviction, could subject him to greater penalty under the Federal Sentencing Guidelines and would be in violation of Canon 4 of the Code of Professional responsibility.

The principal grounds on which DeGeurin relied to quash the subpoena included an assertion of the attorney-client privilege, interpreted in light of this circuit's Jones ⁴ decision; Fed.R.Crim.P. 17(c); the Sixth Amendment; Guidelines for Attorney Subpoenas issued by the United States Department of Justice; and the Code of Professional Responsibility. ⁵

The government contested each of these arguments. In addition, responding to the complaint that DeGeurin's grand jury testimony would force him to be a witness against his client and would provoke his disqualification, the government stated that it would not use fee information against Reyes-Requena before the grand jury or at his trial. (R. 207-08).

Judge Hittner's thoughtful opinion rejected the last two grounds urged by DeGeurin, ⁶ but it found the first three arguments persuasive. Judge Hittner particularly relied upon his interpretation of Jones as establishing an attorney-client privilege that shielded DeGeurin from revealing fee information concerning Reyes-Requena, including specifically whether a third party benefactor had paid Reyes-Requena's fees. He found the timing of the issuance of the subpoena, i.e., during the pendency of criminal proceedings against Reyes-Requena, to be relevant. He found that the attorney-client privilege was not being invoked as a shield for continuing illicit activity. See In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. Unit A 1982) (en banc); In re Grand Jury Subpoenas (Hirsch), 803 F.2d 493, 499 (9th Cir.1986), supplemented, 817 F.2d 64 (9th Cir.1987). He also concluded that the government's case against Reyes-Requena was weak because his "mere presence" at the house where cocaine was stored did not suggest complicity in an illegal enterprise. Cf. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982) ("[M]ere presence at the scene of the crime or close association with a co-conspirator will not support an inference of participation in a conspiracy...."). Thus, "a subpoena to Reyes-Requena's attorney ... could elicit information providing an affirmative connection between [Reyes-Requena] and the cocaine" and could yield evidence that "would tend to connect" the defendant to the cocaine and "may provide evidence of the existence of a conspiracy," a possible additional charge against the defendant. The opinion acknowledged that in other contexts, the information sought by the subpoena might not be privileged, but that it satisfied the Jones standard of furnishing a "crucial link" in the government's case.

The district court sought further support from its supervisory power to quash grand jury subpoenas "if compliance would be unreasonable or oppressive." Fed.R.Crim.P. 17(c). The court found that the timing of the subpoena impinged upon the attorney-client relationship and severely hindered the effectiveness of DeGeurin's representation.

The court finally held that Reyes-Requena's Sixth Amendment right to counsel was infringed by enforcement of the subpoena inquiring into the attorney's fee arrangement with his client during the course of pre-indictment proceedings. ⁷ This conclusion was based upon the constitutional presumption in favor of a defendant's choice of counsel, Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 1699...