In re Grand Jury Subpoena For Attorney

• Decision Date: 31 October 1989
• Docket Number: Misc. No. H-89-522.
• Citation: 724 F. Supp. 458
• Parties: In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristo REYES-REQUENA.
• Court: U.S. District Court — Southern District of Texas

724 F. Supp. 458

In re GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT Jose Evaristo REYES-REQUENA.

Misc. No. H-89-522.

United States District Court, S.D. Texas, Houston Division.

October 31, 1989.

Henry K. Oncken, U.S. Atty., Susan Kempner, Lawrence D. Finder and Kenneth Magidson, Asst. U.S. Attys., Houston, Tex.

Dick DeGuerin, DeGuerin & Dickson, Houston, Tex., for Mike DeGeurin.

Jim E. Lavine, Houston, Tex., for Harris County Crim. Lawyers Ass'n.

Jack B. Zimmerman, Association of Trial Lawyers of America, Houston, Tex., for American Trial Lawyers Ass'n.

Kent A. Schaffer, James Clifford Sabolos, Don Ervin, Houston, Tex., for Tex. Crim. Defense Lawyers Ass'n.

Gerald H. Goldstein, Goldstein, Goldstein & Hilley, San Antonio, Tex., for Nat. Ass'n of Crim. Defense Lawyers.

ORDER

HITTNER, District Judge.

Pending before this Court is the Motion to Quash Grand Jury Subpoena for Attorney of Record for Defendant Jose Evaristo Reyes-Requena, Mike DeGeurin (Document No. 2).

The Court has considered petitioner's motion and the Government's response. On October 2, 1989, the Court heard the arguments of movant, Mike M. DeGeurin, his attorney, Dick DeGuerin, and the Government, represented by Lawrence D. Finder. Additionally, the Court heard the arguments of representatives from the National Association of Criminal Defense Lawyers, the Texas Criminal Defense Lawyers Association, the Harris County Criminal Lawyers Association, and the Association of Trial Lawyers of America, who were granted leave to appear as amici curiae in this action. Having reviewed the foregoing and the applicable law, the Court concludes that the motion to quash should be, and hereby is, granted.

BACKGROUND

The Intervenor, Jose Evaristo Reyes-Requena ("Reyes-Requena"), was arrested on or about September 18, 1989, in a residence containing in excess of 141 kilograms of a substance believed to be cocaine. Reyes- Requena was in the living room sleeping on a bedroll on the floor. A loaded 357 magnum revolver was subsequently found under the blankets. Agents found the cocaine in the front bedroom. Intervenor was charged with possession with intent to distribute in excess of five kilograms of cocaine, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), in Cause No. H-89-834M pending in the Southern District of Texas.

On September 22, 1989, a United States Magistrate held a combined preliminary examination and detention hearing. During cross-examination by defense counsel Mike DeGeurin, an FBI witness related the substance of certain postarrest statements made by Intervenor. In summary, Intervenor told an agent that he had come to the Houston area approximately two months previously from Matamoros, Mexico, and was unemployed. He met a person, whom he called "Chapa," who offered Intervenor the use of a residence and food in exchange for watching the residence. Intervenor stated that he had seen Chapa bringing boxes into and out of the house. It was at this residence that Intervenor was arrested. At the conclusion of the preliminary examination, the magistrate found the evidence sufficient to support a finding of probable cause for arrest. Intervenor was subsequently released on bond.

After the hearing, the Government prepared a grand jury subpoena directed to Mike DeGeurin, which was executed sometime on or after September 26, 1989. The subpoena requested that Mike DeGeurin testify before the federal grand jury on September 29, 1989, and that he bring to the grand jury

any and all documents or records pertaining to legal fees received or due to you or your law firm for your representation of Jose Evaristo Reyes-Requena, including, but not limited to fee agreements or contracts for the representation of Jose Evaristo Reyes-Requena; receipts or invoices for fees received or owed for the representation of Jose Evaristo Reyes-Requena; and any memoranda, papers or recordings concerning the source of fees paid or due you or your law firm for the representation of Jose Evaristo Reyes-Requena.

Mike DeGeurin, represented by his brother, Dick DeGuerin,¹ now asks this Court to quash the Government's subpoena.

ANALYSIS

The issue before this Court is whether in the course of ongoing criminal proceedings the Government may serve a grand jury subpoena upon an attorney, seeking disclosure of fee information so as to "ascertain the breadth of criminal activity." Government's Response to Motion to Quash Grand Jury Subpoena for Attorney of Record for Defendant Jose Evaristo Reyes-Requena, Mike DeGeurin, at 3 hereinafter Government's Response.

Mike DeGeurin argues that this Court should quash the subpoena on the following grounds: (1) the subpoena was issued in violation of the Justice Department's internal guidelines requiring approval of the Assistant Attorney General of the Criminal Division before an Assistant United States Attorney may issue a subpoena to an attorney (citing U.S. Department of Justice, Attorney Subpoena Guidelines, Executive Office for the United States, Department of Justice, United States Attorneys' Manual § 9-2.161(a) (1985) hereinafter DOJ Manual); (2) compliance with the subpoena would contravene movant's obligations under the Code of Professional Responsibility of the State of Texas, which requires that he not divulge any facts which came to his attention by reason of an attorney-client relationship (citing Supreme Court of Texas, State Bar Rules Art. 10, § 9 (Code of Professional Responsibility) Canon 4, DR 4-101, reprinted in Tex.Gov't Code Ann. tit. 2, subtit. G App. (Vernon 1988) hereinafter Texas Code of Professional Responsibility); (3) the subpoena violates the attorney-client privilege; and (4) service of the subpoena upon the Intervenor's attorney deprives the Intervenor of his sixth amendment right to counsel.

A. Department of Justice Guidelines

The United States Department of Justice Attorney Subpoena Guidelines provide that prior to the issuance of a subpoena to an attorney relating to the representation of a client, the Assistant Attorney General of the Criminal Division must determine, in part, that:

The reasonable need for the information ... outweighs the potential adverse effects upon the attorney-client relationship. In particular, the need for the information must outweigh the risk that the attorney will be disqualified from representation of the client as a result of having to testify against the client.

DOJ Manual, supra, § 9-2.161(a)(E)(4). Movant contends that the Government failed to obtain the requisite prior approval and that, accordingly, the subpoena must be quashed. The Government responds that it did obtain prior approval and even if it had not, failure to comply with internal guidelines is not grounds to quash a subpoena.

Generally, courts will decline to enforce federal agency guidelines, such as those at issue here, that are not mandated by statute or the Constitution. See, e.g., United States v. Caceres, 440 U.S. 741, 755-56, 99 S.Ct. 1465, 1473-74, 59 L.Ed.2d 733 (1979). Additionally, the Department of Justice guidelines include a specific proviso negating enforceability:

These guidelines ... are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.

DOJ Manual, supra, § 9-2.161(a); see also Stern & Hoffman, Privileged Informers: The Attorney Subpoena Problem and A Proposal for Reform, 136 U.Pa.L.Rev. 1783, 1819 (1988) ("DOJ guidelines are completely unenforceable").

The Court thus concurs with the Government that any failure to comply with internal guidelines is not a basis for quashing the Government's subpoena.²

B. Code of Professional Responsibility

Mike DeGeurin next argues that compliance with the subpoena would cause him to violate the Texas Code of Professional Responsibility. Rule 4 B of Appendix 3 of the Local Rules for the United States District Court for the Southern District of Texas provides that an attorney's conduct before the Courts of the Southern District of Texas is governed by the Code of Professional Responsibility of the State Bar of Texas. Disciplinary Rule 4-101 of the Texas Code of Professional Responsibility provides that "a lawyer shall not knowingly: ... reveal a confidence or secret³ of his client." Texas Code of Professional Responsibility, supra, DR 4-101(B).

Without reaching the issue of whether the information sought falls within the attorney-client privilege and is thus a "confidence," this Court concludes that enforcement of the subpoena would not cause movant to violate his ethical obligations under the Code. In addition to the foregoing provision, the Texas Code also provides that an attorney may reveal confidences and secrets when "required by law or court order." Id. DR 4-101(C)(2). Under the circumstances here, Mike DeGeurin's compliance would be compelled by a court order enforcing the subpoena. Accordingly, the Court is unable to find that any resulting disclosure would constitute an ethical violation. See Stern & Hoffman, supra, at 1815-16.

C. Attorney-Client Privilege

Pursuant to Rule 26 of the Federal Rules of Criminal Procedure, federal common law governs the applicability of the attorney-client privilege in this circuit. In re Grand Jury Proceedings (Jones), 517 F.2d 666, 669-70 (5th Cir.1975). The privilege applies in the following instance:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) except the protection be waived.

8 J. Wigmore, Evidence §...