U.S. v. Bump

• Decision Date: 20 September 1979
• Docket Number: No. 77-1841,77-1841
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dave BUMP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 548

605 F.2d 548

UNITED STATES of America, Plaintiff-Appellee, v. Dave BUMP, Defendant-Appellant.

No. 77-1841.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 24, 1979.

Decided Sept. 20, 1979.

Philip Hornbein, Jr., Denver, Colo., for defendant-appellant.

Nancy E. Rice, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Edward W. Nottingham, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and BARRETT and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Dave Bump appeals his conviction by a jury for conspiracy to import marijuana in violation of 21 U.S.C. §§ 963, 952. The convictions of Irving Goldfien, Forrest Smith and Richard Haddad, tried separately as coconspirators, are not in question here. Another alleged coconspirator, Jose Quintero, was apparently tried in Mexico.

Bump testified on his own behalf at the trial. The only issues in the appeal relate to the attorney-client privilege and arise out of questions asked during cross-examination of Bump.

Evidence showed William Coller, a Drug Enforcement Administration agent, and Joseph Plante, an informer for the Royal Canadian Mounted Police, successfully infiltrated the marijuana smuggling operation in which Bump is alleged to have participated. Haddad enlisted Coller and Plante as pilots to fly marijuana from Culiacan, Mexico to the Alamosa, Colorado area. Meetings with various of the coconspirators were held on October 20 and 21, 1976, money was given to the agents, and a trip was made by Coller and Quintero to Mexico on October 22, where they obtained marijuana. The activity terminated when, instead of flying to the United States, Coller changed course surreptitiously and flew instead to Mazatlan, Mexico, where Quintero was arrested.

Bump does not challenge the government's evidence proving the existence of a conspiracy, but denies any participation in the conspiracy. Testifying in his own defense, Bump stated he was in the business of selling Indian jewelry for a bank in Albuquerque, New Mexico, where he lived; business necessitated a trip to St. Louis, Missouri on October 22, 1976, for two days; he routed his trip through Denver for October 20, instead of taking a direct flight from Albuquerque to St. Louis, because several friends, among whom were Haddad, Smith, and Goldfien, would be meeting together in Denver for a poker game. Other testimony at trial supports that in fact a poker game did take place the evening of October 20 until approximately 6:30 a. m. October 21. Agent Coller testified that Bump was present during some of the meetings on those days with the coconspirators, was introduced as a member of the organization, and participated in some of the planning. Bump admitted his friendship with Haddad, Smith, and Goldfien, and his presence with them at various times during this period, but denied any knowledge of the conspiracy or participation in the planning meetings.

In preparing his defense, Bump requested discovery under Fed.R.Crim.P. 16(a); the government then exercised its right to reciprocal discovery under Rule 16(b). In response, Bump's attorney told the prosecution the defense intended to introduce evidence that Bump was in St. Louis during part of the time at issue, including his mother's BankAmericard record showing purchase of an airline ticket to St. Louis and registration records at a Ramada Inn in St. Louis for two days beginning October 22, 1976. His mother's BankAmericard account actually showed no charge for such a ticket, and no records were produced showing his registration in the St. Louis motel. Bump testified on direct examination that he flew to St. Louis October 22, and stayed two days, but he made no reference to the BankAmericard or Ramada Inn registration records. On cross-examination the prosecution pursued the matter of the BankAmericard and the hotel registration as follows:

Q You paid for that (airline flight) with your mother's credit card?

A I can't remember if I paid for it with her card or cash.

Q Have you ever told anyone you paid for it with your mother's BankAmericard?

MR. McCARTY: Object, Your Honor, it's argumentative.

THE COURT: You may answer.

A Well, I certainly have flown on my mother's credit card before. I don't know who I have told and who I haven't.

Q I'm not sure that answers my question. I just want to get it clear in my own mind. Have you ever told anybody in connection with this case that you used your mother's BankAmericard on this trip?

A Yes, sir.

MR. McCARTY: I'm going to object to that, Your Honor. It is invading the attorney-client privilege.

THE COURT: Overruled.

Q You have?

A Yes, sir, I probably have.

Q You stayed in St. Louis two days?

A Yes, sir.

Q Where at?

A The Ramada Inn, and it was a residential it wasn't at the airport.

Q Did you check with the Ramada Inn to see if they had a record of your staying there?

A Yes, sir.

Q And they did not, did they?

A It is not the Ramada Inn any more.

Q Well, whatever that hotel is, they did not have a record of your staying there?

A That's right.

On appeal, Bump claims this questioning constituted an impermissive intrusion into the confidential relationship between attorney and client, deprived him of effective assistance of counsel, and, because of the government's improper use of information revealed under Rule 16(b), forced him to be a witness against himself in violation of his Fifth Amendment rights.

Bump's contentions are all premised upon the attorney-client privilege protecting his statements to his attorney concerning use of his mother's BankAmericard and the Ramada Inn registration records. An important element of the lawyer-client privilege is a showing that the communication was meant to be kept secret. When a matter is communicated to the lawyer with the intention or understanding it is to be repeated to another, the content of the statement is not within the privilege. The leading case for this proposition is Wilcoxon v. United States, 231 F.2d 384 (10th Cir.), Cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1956) in which the court said,

In directing his attorney to propound the questions to the witness, it was the intent and purpose of appellant that the substance of such directions would be immediately repeated to the witness in the form of questions. It is manifest that in such circumstances, the directing of the attorney to ask the questions did not constitute a confidential communication within the purview of the general protective rule.

231 F.2d at 386. See also United States v. Tellier, 255 F.2d 441 (2d Cir. 1958). Even if the privilege exists it is waived when the client voluntarily reveals the information to another or his attorney does so with his consent. See e. g., In the Matter of Grand Jury Subpoena, 438 F.Supp. 1176 (S.D.N.Y.1977); McCormick's Handbook of the Law of Evidence § 93 (2d ed. 1972).

In this case Bump's attorney gave information acquired from his client to the government. Bump makes no showing that the lawyer's disclosures were without his consent, or that he communicated the information to the attorney with the intention it be kept secret. The burden of proving a communication is privileged is upon the person asserting the privilege. E. g., United States v. Ponder, 475 F.2d 37 (5th Cir. 1973). Therefore, we can find no violation of the attorney-client privilege unless we say either Fed.R.Crim.P. 16(b) unlawfully compelled the disclosure in violation of the attorney-client privilege, or that disclosures made under Rule 16(b) may not be used against a defendant in the circumstances of this case.

In analyzing the validity of Rule 16(b) we first have a conceptual difficulty. Rule 16(b) requires disclosure only of documents and tangible objects; statements made by the defendant to his attorney are specifically declared to be nondiscoverable. ¹ What was revealed by Bump's attorney was that documents purportedly existed showing Bump charged an airline ticket to his mother's BankAmericard and that he was registered at a Ramada Inn in St. Louis. The Ramada registration record did not exist or was not found; the BankAmericard record proved the contrary of the defendant's assertion. Disclosing the documents, or alleged documents, does not of itself require disclosure of the communication as to what they tend to prove....