In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985, M-11-188 (DNE).

• Citation: 605 F. Supp. 839
• Decision Date: 11 March 1985
• Docket Number: No. M-11-188 (DNE).,M-11-188 (DNE).
• Parties: In re GRAND JURY SUBPOENA DUCES TECUM DATED JANUARY 2, 1985 (Robert M. Simels, Esq.). Donald PAYDEN, Intervenor, v. UNITED STATES of America, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

605 F. Supp. 839

In re GRAND JURY SUBPOENA DUCES TECUM DATED JANUARY 2, 1985 (Robert M. Simels, Esq.). Donald PAYDEN, Intervenor, v. UNITED STATES of America, Respondent.

No. M-11-188 (DNE).

United States District Court, S.D. New York.

March 11, 1985.

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Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., So. Dist. of N.Y., John K. Carroll, Stuart E. Abrams, Rhea Kemble Brecher, Asst. U.S. Attys., New York City, of counsel, for respondent.

Obermaier, Morvillo & Abramowitz, P.C., Elkan Abramowitz,^* New York City, of counsel, and Robert M. Simels, P.C., Robert M. Simels, New York City, of counsel, for defendant-intervenor Donald Payden.

Committee on Criminal Advocacy of the Ass'n of the Bar of the City of N.Y., amicus curiae, Gerald B. Lefcourt, New York City, of counsel.

New York Civil Liberties Union, amicus curiae, Richard Emery, New York City, of counsel.

National Ass'n of Criminal Defense Lawyers, amicus curiae, Merrill N. Rubin and Alan Silber, New York City, of counsel.

N.Y. Criminal Bar Ass'n, amicus curiae, Herman Kaufman, New York City, of counsel.

EDELSTEIN, District Judge:

This motion involves a subpoena duces tecum issued by the Grand Jury on January 2, 1985 to Robert M. Simels, Esq. ("Simels"), counsel for defendant Donald Payden ("Payden"), to appear before the Grand Jury and disclose certain information regarding his fee arrangement with Payden. Payden has moved to quash the subpoena on the ground that it violates his sixth and fifth amendment rights. To resolve the issues presented by this motion the court has carefully balanced Payden's sixth and fifth amendment rights and the government's substantial interests in obtaining evidence of criminal conduct.¹ The intervenor's motion to quash the subpoena is hereby denied.

BACKGROUND

On August 2, 1984, Payden was arrested on charges of conspiring to sell heroin. Ten days later, Payden was named in a two count indictment, which charged Payden and another defendant with conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Upon presentment before Magistrate Leonard Bernikow on August 3, 1984, an appearance was entered for Jay Goldberg, Esq. ("Goldberg") as Payden's counsel. Goldberg continued as Payden's counsel until early September, 1984.² Following a number of conferences and a hearing, Goldberg chose to withdraw because of an apparent conflict resulting from Goldberg's prior representation of one of Payden's alleged co-conspirators who was a participant in an intercepted telephone conversation that will be played at trial.³ On September 19, 1984, Simels entered an appearance for Payden and has continued as Payden's counsel. On October 10, 1984, the Grand Jury returned a superseding indictment against Payden. In addition to the two counts contained in the initial indictment, the superseding indictment added a third defendant and a count under 21 U.S.C. § 848 which charges that Payden organized a continuing criminal narcotics enterprise ("848 count"). Under the 848 count, the government seeks forfeiture of all profits and proceeds of profits obtained by Payden from the operation of the narcotics enterprise and has particularized two items: cash seized from Payden's home and a 25% interest in a company as represented by shares of stock.⁴

On October 17, 1984, subsequent to the return of the first superseding indictment, the government served Simels with a trial subpoena, pursuant to Fed.R.Cr.P. 17(c).⁵ In substance, the trial subpoena calls for production of documentary evidence relating to defendant's fee arrangement and payments to counsel. The government's stated purpose in seeking fee information pursuant to the trial subpoena "was to obtain evidence of the disposition by Payden in the post-August 2, 1984 period of a substantial sum of money because it would be probative evidence of his receipt of substantial profits from his narcotics trafficking." Government's Affidavit in Response to Motion to Quash at ¶ 31. Although the subpoena was made returnable October 27, 1984, Simels requested and was granted an extension by the government and permitted to withhold the information pending review by the United States Attorney of the decision to seek information regarding Simels' fee. On January 29, 1985, the government withdrew the trial subpoena, pending resolution of this motion.

On January 2, 1985, the Grand Jury issued a subpoena duces tecum to Simels. The Grand Jury subpoena commands testimony and the production of documents similar to those sought in the previously issued and subsequently withdrawn trial subpoena.⁶ The Grand Jury subpoena was served on Simels in open court on January 3, 1985. On January 19, 1985, Payden moved to intervene and quash the Grand Jury subpoena and the court heard oral argument on February 5, 1985. The return date of the Grand Jury subpoena has been adjourned on several occasions pending a decision on the motion.

DISCUSSION

I. Intervention of Donald Payden.

Payden's motion to intervene is granted. Payden has presented substantial questions regarding his sixth amendment and fifth amendment rights. The threat to these rights presents a sufficient interest in the subject of the subpoena to entitle him to intervene as of right. See In re Katz, 623 F.2d 122, 125 (2d Cir.1980) (fifth amendment right of intervenor threatened when intervenor's attorney served with subpoena).

II. The Motion to Quash the Grand Jury Subpoena.

Payden seeks to quash the subpoena because it infringes on his right to the effective assistance of counsel provided by the sixth amendment and his fifth amendment right to be free from abuse of grand jury process.

A. Sixth Amendment Rights.

The first step in analyzing this motion is to determine the nature of the alleged sixth amendment infringement. The sixth amendment⁷ protects a number of aspects regarding the effective assistance of counsel, see, e.g., Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (trial court's order preventing communication between counsel and defendant violated sixth amendment); In re Grand Jury Matters, 751 F.2d 13 (1st Cir.1984) (prosecutors' actions which prevented defense counsel from adequately preparing for impending trial violated sixth amendment); United States v. Pineda, 692 F.2d 284, 287 (2d Cir.1982) (ordinarily government's deliberate use of informer to elicit incriminatory statements from the defendant after the indictment violates the sixth amendment), and not all of them are implicated here. There are three possible areas of infringement in this case: the mere disclosure of the fee arrangement itself; the effect of responding to the subpoena on the ability of counsel to prepare for trial; and the effect of counsel testifying and the result of being forced to withdraw as trial counsel in this case.

1. Disclosure of the information.

The first area of possible infringement stems from the disclosure of the fee information. The fee information will supply the government with additional evidence of "substantial income," an element of the 848 count. Payden contends that the mere disclosure of the fee information, which may incriminate him, infringes his sixth amendment right. He contends that requiring Simels to disclose this information will chill Payden's relationship of trust and confidence with Simels. This argument is unpersuasive. The mere disclosure by defense counsel of information that is adverse to the defendant does not affect counsel's ability to represent the defendant effectively as required by the sixth amendment. United States v. Wilson, 571 F.Supp. 1417, 1422 (S.D.N.Y.1983) (not an infringement of sixth amendment unless legal strategy would be disclosed); see In re Grand Jury Witness (Waxman), 695 F.2d 359, 363 (9th Cir.1982) (per curiam); In re Grand Jury Proc., Des Moines, Iowa, 568 F.2d 555, 558 (8th Cir.1977), cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Wolfson, 558 F.2d 59, 65-66 (2d Cir.1977); see also In re January 1976 Grand Jury (Gensen), 534 F.2d 719, 731 (7th Cir.1976) (where client makes his attorney a witness to the crime by giving him money, the client may not invoke the sixth amendment to bar the attorney's testimony at trial).

The sixth amendment protects two types of information from disclosure: privileged information and information that relates to the preparation of a defense. Thus, the sixth amendment provides broader protection than the attorney-client privilege. See generally Allis, Limitations on Prosecutorial Discovery of the Defense Case in Federal Courts: The Shield of Confidentiality, 50 S.Cal.L.Rev. 461, 507-10 (1977) (discussion of cases involving sixth amendment infringement based on "piercing of the shield of confidentiality which surrounds the preparations of the defense camp" which were not interferences with attorney-client privilege). The disclosure of fee information by an attorney is not protected by the attorney-client privilege in this circuit. In re Shargel, 742 F.2d 61, 62 (2d Cir.1984); see also In re Witnesses Before Special March 1980 Grand Jury, 729 F.2d 489, 492 (7th Cir. 1984) (government entitled to fee information from former attorneys pursuant to its investigation of continuing criminal enterprises); United States v. Sherman, 627 F.2d 189, 190-92 (9th Cir.1980) (privilege does not prevent disclosure of fees for use in "net worth" theory of computing tax liability).⁸ Some courts apply a more expansive interpretation of the attorney-client privilege based on the "`incrimination rationale,' which focuses upon whether the materials sought may be used as evidence against the client." In re Shargel, supra, 742 F.2d at 62 & n. 2. Thus, the first question is whether information which would be privileged under the "incrimination rationale" but not...