In re Sawyer's Petition

• Decision Date: 01 March 1956
• Docket Number: No. 11464.,11464.
• Citation: 229 F.2d 805
• Parties: Petition for Writ of Habeas Corpus for Walter J. SAWYER. Walter J. SAWYER, Petitioner-Appellant, v. Max A. BARCZAK, Sheriff of Milwaukee County, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

229 F.2d 805 (1956)

Petition for Writ of Habeas Corpus for Walter J. SAWYER.

Walter J. SAWYER, Petitioner-Appellant,

v.

Max A. BARCZAK, Sheriff of Milwaukee County, Respondent-Appellee.

No. 11464.

United States Court of Appeals Seventh Circuit.

January 12, 1956.

Rehearing Denied March 1, 1956.

COPYRIGHT MATERIAL OMITTED

Carl R. Becker, Milwaukee, Wis., for appellant.

Herbert L. Mount, Milwaukee, Wis., Vernon W. Thomson, Atty. Gen. of Wisconsin, William J. McCauley, Milwaukee, Wis., William A. Platz, Asst. Atty. Gen. of Wisconsin, Harold J. McGrath, Sp. Asst. Dist. Atty., Milwaukee, Wis., for appellee.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SWAIM, Circuit Judge.

This is an appeal from the trial court's denial of a petition for a writ of habeas corpus for release from state imprisonment.

The petitioner, Walter J. Sawyer, was an automobile dealer in the City of Milwaukee, Wisconsin. His garage was located on property to which the city had taken title in order to widen the street on which the garage faced. The project as originally proposed called for the destruction of the Sawyer garage. The plan was eventually changed so that the block in which Sawyer's garage is located was widened on one side only, thereby allowing the garage to remain standing. As a result the street is narrower in that section of the block than elsewhere, and the streetcar tracks are eight feet off center.

Sawyer was charged with having bribed Albert Krause, a Milwaukee alderman, to use his influence in having the plan changed so that the Sawyer garage would not be destroyed. Sawyer was indicted under Section 346.06 of the Wisconsin Statutes; he was tried and convicted. This conviction was reversed and remanded by the Wisconsin Supreme Court because a copy of the prosecutor's notes used on oral argument was inadvertently included in the exhibits which were sent to the jury room. State v. Sawyer, 263 Wis. 218, 56 N.W.2d 811. On a second trial Sawyer was again found guilty, and this conviction was affirmed. State v. Sawyer, 266 Wis. 494, 63 N.W.2d 749.

Sawyer then filed his petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. In this petition Sawyer claimed that he had been denied his right to due process of law given him by the Fourteenth Amendment because he had not received a "speedy trial," and because the prosecutor had knowingly induced perjury on the part of Krause, the alderman whom Sawyer allegedly bribed. A hearing was granted on the petition to determine whether or not the petitioner's Constitutional rights had been denied. The District Court found against petitioner and dismissed the writ. Sawyer filed his notice of appeal and the District Judge issued a certificate of probable cause pursuant to 28 U.S.C.A. § 2253.

The petitioner relies on several alleged errors in the court below. First he claims that the trial judge erred in striking and refusing to consider the testimony of witness Paul A. Hemmy, an attorney whom the witness Krause had consulted. Krause, the alderman whom Sawyer was accused of bribing, had been convicted of accepting bribes on other occasions. At the time of the Sawyer trial Krause was serving a term in the Wisconsin State Prison for having accepted a bribe. There were other charges pending against Krause, including the charge of having accepted the bribe from Sawyer. Krause was anxious to have the other charges against him dismissed because of the effect they might have on his application for parole.

Shortly before the first Sawyer trial Krause wrote a letter to Attorney Hemmy and asked Hemmy to visit him in prison. Hemmy testified below that Krause told him that he had not received money from Sawyer, and that Sawyer had never asked him to use his influence in altering the street widening plan. But Krause said that if Hemmy could get the prosecutor to dismiss the remaining charges against him, he would testify that he accepted a bribe from Sawyer. Hemmy refused to have anything to do with the plan, but he did make a note on the inside of a file cover about what Krause had said during their talk. All this was heard and examined by the trial judge subject to the respondent's objection that it was inadmissible both as hearsay and as a privileged disclosure made by a client to his attorney. After hearing all of Hemmy's testimony the District Judge ruled that it was a privileged communication between client and attorney and was not admissible. The District Judge, therefore, refused to consider it in making his decisions as to the facts. We think that in this ruling the trial court erred.

The attorney-client privilege has never prevented the disclosure of communications made in furtherance of a crime. Alexander v. United States, 138 U.S. 353, 11 S.Ct. 350, 34 L.Ed. 954; Pollock v. United States, 5 Cir., 202 F.2d 281. In both these cases, however, the communications were admitted in the client's trial for the crime in furtherance of which they were made. In fact, the Alexander case expressed as dicta the opinion that the rule should be limited to trials for the crime in furtherance of which the communication was made. This suggestion has not been followed by trial courts, however. A. B. Dick Co. v. Marr, D.C., 95 F.Supp. 83, 102; Securities and Exchange Commission v. Harrison, D.C., 80 F.Supp. 226, 230-231. Wisconsin, too, has recognized this limitation on the privilege in all cases and not just in the client's criminal trial. In Dunn v. Amos, 14 Wis. 106, the plaintiff sought to set aside a fraudulently drawn deed; the court held that the testimony of the attorney who had drawn the deed was admissible against the client.

Wigmore approves this exception to the privilege in both criminal and civil cases and quotes the celebrated English case, Annesley v. Earl of Anglesea, 17 How St.Tr. 1229, in support of the position.

"Mounteney, B.: For God\'s sake then let us consider, what will be the consequence of the doctrine now laid down and so earnestly contended for, that such a declaration made by any person to his attorney ought not by that attorney to be proved? A man (without any natural call to it) promotes a prosecution against another for a capital offense this was the actual circumstance in this case; he is desirous and determined, at all events, to get him hanged; he retains an attorney to carry on the prosecution, and makes such a declaration to him as I have before mentioned (the meaning and intention of which, if the attorney hath common understanding about him, it is impossible he should mistake); he happens to be too honest a man to engage in such an affair; he declines the prosecution; but he must never discover this declaration; because he was retained as attorney. This prosecutor applies in the same manner to a second, a third, and so on, who still refuse, but are still to keep this inviolably secret. At last, he finds an attorney wicked enough to carry this iniquitous scheme into execution. And after all, none of these persons are to be admitted to prove this, in order either to bring the guilty party to condign punishment, or to prevent the evil consequences of his crime with regard to civil property. Is this law? Is this reason? I think it is absolutely contrary to both * * *." 8 Wigmore on Evidence, § 2298, p. 577 (3d ed. 1940). (Emphasis added.)

For additional authority see: In re Cole, Fed.Cas.No.2,975, 8 Rep. 105; Kaufman v. United States, 2 Cir., 212 F. 613; Fuston v. United States, 9 Cir., 22 F.2d 66; United States v. Bob, 2 Cir., 106 F.2d 37, 125 A.L.R. 502, certiorari denied 308 U.S. 589, 60 S.Ct. 115, 84 L.Ed. 493.

The lone dictum in the Alexander case notwithstanding, we think that the rule accepted by all courts today is that a client's communication to his attorney in pursuit of a criminal or fraudulent act yet to be performed is not privileged in any judicial proceeding. As Judge Medina said in A. B. Dick Co. v. Marr, supra:

"Nevertheless, it is quite clear that the privilege disappears if it is invoked merely to cloak a fraudulent scheme, and that when a client consults an attorney as to how to concoct or perpetrate a fraud the privilege is unavailing." 95 F.Supp. at page 102.

There can be no doubt that Krause's communication as related in court by his attorney, Hemmy, was on its face fraudulent and an attempt to have the lawyer assist him in the commission of a crime. Krause said that he did not receive any money from Sawyer, but that he would testify that he did if Hemmy could make a deal with the prosecutor to have the remaining charges against him dismissed.

Hemmy's testimony was not hearsay. Sawyer was only trying to prove the proposition that Krause made to Hemmy. Hemmy heard the statements directly from Krause. 31 C.J.S., Evidence, § 192, gives a good capsule definition of hearsay evidence: "Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness." If Krause had told Hemmy of some objective occurrence he had observed, Hemmy's testimony of what Krause had said would be hearsay if offered to prove the occurrence Krause had observed. But when offered to prove only what he heard Krause say, Hemmy's testimony is not hearsay.

The court below should have admitted the testimony of Hemmy, and considered it in its determination of facts. But the appellant has not shown that he was prejudiced by the exclusion of this evidence. Of course, harmless error is not grounds for reversal, and the appellant has both the burden of proving error and of showing that he was prejudiced thereby. Yazoo & M. V. R. Co. v. Mullins, 249 U.S. 531, 39 S.Ct. 368, 63 L.Ed. 754; McGivern v. Northern Pac. R. Co., 8 Cir., 132 F.2d 213, 216; Jennings v. United States, 5 Cir., 73 F.2d 470; Marin v. Ellis, 8 Cir., 15 F.2d 321, 322; Parker v. Elgin, 6 Cir., 5 F.2d 562, 564. Contra: Inman Bros. v. Dudley & Daniels Lumber Co., 6 Cir., 146 F. 449; Westall v....