Hunydee v. United States, 19904.

Decision Date20 December 1965
Docket NumberNo. 19904.,19904.
Citation355 F.2d 183
PartiesLee W. HUNYDEE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Carl A. Stutsman, Jr., Kyle D. Brown, Hill, Farrer & Burrill, Los Angeles, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van DeKamp, Asst. U. S. Atty., Chief Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief Crim.Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

Lee W. Hunydee was tried and convicted on four counts of an indictment charging attempts to evade payment of income taxes, in violation of section 7201 of the Internal Revenue Code of 1954 (Code). Appealing to this court Hunydee contends, among other things, that the admission of certain testimony over his objection violated the attorney-client communication privilege.

In the same indictment in which appellant was charged, Audrey Jean Stewart Hunydee was charged with the related offense of aiding in the preparation and presentation of false income tax returns, in violation of section 7206(2) of the Code. Because of a possible conflict of interest, Mr. and Mrs. Hunydee employed separate counsel.

On June 4, 1963, a pre-indictment meeting was held between the co-defendants and their respective attorneys. This meeting was called by Harry D. Steward, counsel for Mrs. Hunydee (then Mrs. Stewart). Steward there stated that he had advised his client to cooperate with the Government but that she was reluctant to do so for fear of hurting Hunydee. Steward expressed his opinion that if his client would cooperate with the Government she would not be prosecuted; and if Hunydee would plead guilty, Mrs. Hunydee undoubtedly would not be prosecuted.

At this point, Hunydee and his attorney, Carl A. Stutsman, Jr., conferred privately for fifteen or twenty minutes. When the four persons re-assembled, Stutsman stated that his client would enter a guilty plea. Stutsman then turned to Hunydee and asked, "Is that correct? Are you going to plead guilty and clear Jean?" Hunydee responded, "Yes, I will plead guilty and take the blame." The meeting was then brought to a close.

At the trial, Steward and Mrs. Hunydee were permitted, over objection, to testify to the facts related above. The objection made to the admissibility of this testimony was that it revealed a confidential communication between a client and his attorney. The objection was resisted on the ground that, under the indicated circumstances, the communication was not between a client and his attorney, and was not confidential in character.

The principles invoked by the prosecution are that this privilege is inapplicable where the communication was not between attorney and client. (Himmelfarb v. United States, 9 Cir., 175 F.2d 924, 939), or where the client impliedly authorizes his attorney to make disclosure to a third person (Himmelfarb v. United States, at 939), or where, by reason of any other circumstance, the communication was not intended to be confidential. Leathers v. United States, 9 Cir., 250 F.2d 159, 166.

At the trial, and here, Hunydee relies on Continental Oil Co. v. United States, 9 Cir., 330 F.2d 347, to establish an exception to the principles just stated,...

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