U.S. v. Evans, 97-1120

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 113 F.3d 1457
• Docket Number: No. 97-1120,97-1120
• Parties: 47 Fed. R. Evid. Serv. 99 UNITED STATES of America, Plaintiff-Appellee, v. Jesse J. EVANS, Defendant-Appellant.
• Decision Date: 06 May 1997

Page 1457

113 F.3d 1457 47 Fed. R. Evid. Serv. 99 UNITED STATES of America, Plaintiff-Appellee,
v.
Jesse J. EVANS, Defendant-Appellant. No. 97-1120. United States Court of Appeals,
Seventh Circuit. Argued April 4, 1997.
Decided May 6, 1997. ^*
Rehearing and Suggestion for Rehearing En Banc Denied May 23, 1997.

Page 1458

David S. Rosenbloom (argued), Office of the United States Attorney, Criminal Division, Chicago, IL, for Plaintiff-Appellee.

Chester Slaughter (argued), Lyle, Slaughter & Brewer, Chicago, IL, for Defendant-Appellant.

Before CUMMINGS, DIANE P. WOOD, and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

The trial of Jesse Evans, a Chicago alderman indicted on charges of racketeering (including acts of extortion, accepting bribes, and official misconduct), filing false tax returns, and obstruction of justice, is presently pending in the district court. This interlocutory appeal requires us to review an order of that court granting the government's pretrial motion in limine to admit certain testimony by attorney James Koch, which Evans asserts is protected by the attorney-client privilege. While evidentiary rulings are generally not immediately appealable, this Circuit has interpreted the rule announced in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (order rejecting a claim of privilege is final and thus appealable), as entitling clients to take an immediate appeal when their attorneys are required to testify or produce documents in the face of an assertion of attorney-client privilege and no substantial breach of the privilege has yet occurred. See United States v. Davis, 1 F.3d 606, 607 (7th Cir.1993), certiorari denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 563. Thus our jurisdiction is proper under 28 U.S.C. § 1291. In re Grand Jury Proceeding, 68 F.3d 193, 195 (7th Cir.1995). Because Evans' trial is set for May 19, 1997, this Court granted the government's request for an expedited appeal. We now affirm the district court's order.

I. BACKGROUND

In early January 1996, news reports revealed that Alderman Evans had been targeted in a federal corruption investigation of City officials ("Operation Silver Shovel"). After learning that his long-time friend and occasional client had been implicated in the investigation, attorney John Holden, who is also a Chicago police officer, contacted Evans and spoke with him about Evans' interviews with FBI agents. In the aftermath of this meeting, Holden arranged for and scheduled Evans to meet with three criminal defense attorneys so that Evans could explain his situation, seek legal advice, and decide which of the three attorneys, if any, to retain. On January 8, 1996, after scheduling an appointment on Evans' behalf with attorney James Koch, Holden took Evans to Koch's office where the three conferred. The operative facts governing the resolution of the attorney-client privilege issue presented in this appeal turn entirely on which account of this meeting--Koch's or Holden's--is credited.

Koch testified that Holden phoned him early in the morning on Monday, January 8, 1996, informed him that Evans was going to be indicted and needed legal representation, and asked if Evans and he could come and meet with Koch regarding Koch's possible representation of Evans. Koch also stated that Holden informed him that he was a long-time friend of Evans; there was no mention, however, of any business or legal relationship between Evans and Holden. The three men met later that morning. Koch testified that prior to any sort of substantive discussions regarding the nature of the charges against Evans, he expressed concerns about Holden's presence in the room and its consequences as to the confidentiality of the conversation:

I told Mr. Evans that, based on what had been represented to me by Mr. Holden, that is that he was there as a personal

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friend, that this conversation might not be privileged, and for me to ask intimate facts and details and gather information with the idea of either, well, with the idea of preparing a defense, that I had some concerns about its confidentiality, and that was the initial conversation. And I was told that in fact Mr. Holden was a police officer and a friend, that he was there in that capacity, that he was there as a potential character witness should that ever come to light. That was the initial conversation I had with Mr. Evans, and he said he understood the nature of what I was telling him and that he wanted John Holden to be present for the conversation.

Transcript of Proceedings (12/20/96) at 28-29. When asked by the government if he explained to Evans why the conversation that was about to occur might not be privileged, Koch stated:

I told Mr. Evans that in light of the fact that Mr. Holden is here as a friend and someone to provide perhaps emotional support, that this conversation might not be privileged, and I explained it as it is privileged to an attorney and a client, and there is not a third party present. Mr. Evans said he understood that but wanted Mr. Holden present.

Id. at 31. Further, during cross-examination, Koch added that he had requested that Holden leave the conference room, but that Evans requested that he stay. Id. at 40. When pressed on cross-examination as to whether he expressly informed Evans that the attorney-client privilege was being waived as a result of Holden's presence, Koch testified:

W]hat I recall is telling him that this might not be privileged because your friend John is here, he says he wants to be a character witness, and this conversation might not be privileged. And I recall Mr. Evans saying that in fact he understood that but that he wanted Mr. Holden to remain in the meeting

Id. at 41.

Koch also testified that Holden never indicated that he was there as an attorney for Evans, rather, "he indicated he was there as a friend and, as I said, a potential character witness." Id. at 29. Conversely, when asked on cross-examination, "Did Mr. Holden tell you that he was not acting as an attorney for Mr. Evans," Koch answered, "Yes." Id. at 36. Koch further testified on cross-examination that Holden never said anything about working on the case as one of Evans' attorneys. Id. at 38-39. To the contrary, Koch testified that Holden stated that he could not represent Evans in the pending matter:

Q. [By Evans' attorney]. Did Mr. Holden ever tell you that he could not represent Mr. Evans in any capacity in terms of the case that was pending because he was a Chicago police officer?

A. [By Koch]. I believe that he did.

Id. at 39.

Holden recounted a very different story. He explained that Evans contacted him ¹ and described the situation he was in--namely, that he had been interviewed by the FBI and did not know whether there were any charges, or what was going on. Holden decided that they needed to find competent counsel "to find out whether or not I could represent" Evans. Transcript of Proceedings (12/23/96) at 5. Accordingly, he called Koch, told him that he "represented a prominent client," and scheduled the meeting at Koch's office. When he and Evans met with Koch, Holden introduced Evans by saying, "This is my client, Jesse Evans." Id. at 67. When asked if he explained the purpose of the meeting to Koch, Holden testified:

I said to him that we--I did not know what was going on and that we needed somebody who was an expert to advise me and Mr. Evans whether or not I could represent him at that juncture or whether he needed more competent counsel.

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Id. at 8. Holden explained that he was basically Evans' "family lawyer" and had represented Evans in "several" previous matters including representing Evans' daughter in divorce proceedings, representing Evans' wife in a civil matter, representing Evans' son in connection with a custody or visitation dispute, drawing up miscellaneous contracts for Evans that never went further than the drafting stage, and talking with Evans about setting up a charitable organization to help children in his ward. Id. at 11, 60-61, 63.

Holden testified that he never told Koch that he was not Evans' lawyer and never stated that he was there as Evans' friend, not his attorney. Id. at 7, 11. Holden also denied saying at the meeting that he was there "not as a police officer, not as a lawyer, but as a friend." Id. at 11. Furthermore, Holden testified that he never heard Koch say anything to Evans about the attorney-client privilege or that Holden's presence would destroy the attorney-client privilege. Id. When asked, "Did Mr. Koch in any way say to Mr. Evans in your hearing that the conversation he was having with Mr. Evans was not protected," Holden answered, "No." Id. at 8.

On cross-examination, the government brought out that Holden has known Evans for close to twenty years, that Holden is a close friend of Evans' family (and at one point dated Evans' niece), that Holden has assisted in Evans' campaigns, that Holden respects Evans tremendously and looks up to him as a father figure, and that Holden told an Assistant United States Attorney working on this case words to the effect that he loved Evans. Id. at 12. Holden also testified on cross-examination that he understood that if the meeting with Koch were held to be unprivileged, he might have to testify against Evans at trial. Id. at 14.

Holden also testified on cross-examination that he did indicate at the meeting with Koch and Evans that there might be a conflict of interest with respect to his representation of Evans because he was a Chicago police officer but that he was not sure about this because the Evans matter was a federal matter. Id. at 42. Moreover, Holden testified that at the time he and Evans met with Koch, he had not yet determined that it was a criminal matter involved. Id. at 48-49. Yet he agreed to the government's characterization of Koch as a "criminal defense attorney" and acknowledged that one of the other attorneys with whom he and Evans...