U.S. v. Fortna
| Decision Date | 05 August 1986 |
| Docket Number | No. 85-1644,85-1644 |
| Citation | 796 F.2d 724 |
| Parties | 21 Fed. R. Evid. Serv. 618 UNITED STATES of America, Plaintiff-Appellee, v. Albert Samuel FORTNA, Jr., James Lyne Harnage, George M. Sharer, and Christopher James Reo, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bruce Anton, Frank Jackson, Dallas, Tex., for Fortna.
Jerry C. Alexander, Court Appointed, Dallas, Tex., for Harnage.
Henry Gonzalez, Tampa, Fla., for Sharer.
Michael Edward Vigil, Albuquerque, N.M., for Reo.
Mervyn Hamburg, Washington, D.C., Marvin Collins, U.S. Atty., Robert R. Smith, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.
Albert Samuel Fortna, Jr., James Lyne Harnage, George M. Sharer, and Christopher James Reo appeal their convictions for various offenses concerning a conspiracy to import cocaine. Appellants raise several errors, including their claim that the government obtained evidence against them in violation of Harnage's attorney-client privilege. We affirm the convictions of appellants Fortna, Sharer, and Reo. On Harnage's appeal, we direct the district court to conduct a supplemental hearing on Harnage's motion to quash the indictment; we will dispose of Harnage's appeal once the district court has supplemented the record with the transcript of the ordered hearing and its findings.
Harnage claims to have retained James Smith, a well-known Colorado criminal defense attorney, in the winter of 1983-1984. It is undisputed that Harnage paid Smith a $1,000 retainer fee. Smith was an attorney for Harnage's ex-girlfriend Linda Whitman, a government informant and witness in this case. When Smith was confronted by the Aurora, Colorado police department concerning his possible drug involvement, he agreed to cooperate in drug investigations. On April 26, 1984, Smith met with FBI Agent Charles Evans and furnished a list of approximately twenty persons who, according to Smith, could supply cocaine. Harnage's name was on the list. Smith also identified Whitman as a member of Harnage's cocaine operation. Smith told Evans that Harnage was not a client even though Harnage had paid the retainer fee.
After the April meeting with Evans, Smith continued to provide information about Harnage to the FBI almost daily. On September 28, 1984, Smith wore a concealed tape recorder and traveled around Denver in a vehicle with Harnage and others under FBI surveillance. Smith then supplied information to support a warrant for a search of the vehicle that evening, which produced two kilograms of cocaine. The vehicle previously had been owned by Whitman, who had sold it to Harnage.
Based on the September 28 cocaine discovery and other information, FBI Agent Evans approached Whitman and told her that she was under investigation for conspiracy to distribute cocaine and that she would be indicted and arrested unless she agreed to be a government informant. She decided to participate and signed an agreement with the government in early October 1984.
Whitman had been a cocaine dealer for about nine years before she became a government informant. During the time shortly before she was approached by Evans, Harnage had been her exclusive supplier. She had conducted a strong cocaine business during the spring of 1984, but Harnage hit a dry spell in May or June and could no longer furnish her with cocaine. Harnage assured Whitman that the operation would resume in the future. In the summer of 1984, Harnage first told Whitman of plans for a cocaine importation.
In mid-January 1985, after Whitman had begun working with the government, she accompanied Harnage to Santa Fe, New Mexico where Harnage learned that he could not get an airplane that he had expected to use for the importation venture. The next day, Whitman and Harnage drove to Albuquerque and met with appellants Albert Fortna and George Sharer to discuss the importation. On January 18, 1985, Whitman told Harnage that she might be able to assist with an airplane. She contacted the FBI, and FBI Agent John Martin agreed to act as a long-time friend of Whitman's and owner of a plane that might be used for the importation.
Harnage first spoke with Martin in a taped phone conversation on January 19, in which they agreed to meet in Denver later that week. On January 24, they had a meeting in Denver, also taped by the FBI, where Harnage explained the importation scheme and his need for an airplane. Harnage stated that he had to talk to his partner about getting money for Martin. In later phone conversations, Martin agreed that Harnage and his associates could inspect the plane in Dallas.
On February 1, Harnage and Whitman went to Dallas and met Martin and an undercover agent posing as a pilot. They went to the airport, where they met Harnage's associate William Schwarz, who was to fly as co-pilot. Schwarz inspected the plane and expressed his approval. Harnage said that Sharer would be coming to Dallas to make a dry run to Colombia.
On February 18, Fortna called Martin and identified himself as Harnage's partner. In this conversation and several others in the subsequent weeks, Fortna and Martin discussed arrangements for the importation and for payments to Martin. They had their first face-to-face meeting, which Harnage also attended, near the Dallas-Fort Worth airport on April 5. In the weeks that followed, Martin had several phone conversations and meetings with various participants as they finalized the plans for the importation. The plane was to leave from Dallas for Colombia, and was to return with the cocaine to Albuquerque. Martin learned that appellant Sharer, who speaks Spanish, was in charge of the logistics in South America. Martin also met Ronald Poland, whose role was to haul a portion of the cocaine to Los Angeles after its arrival in Albuquerque.
As the planned date of the importation neared, the participants assembled in Albuquerque. Martin met Harnage and Fortna on April 19 at the Barcelona Court Hotel there. Poland, Schwarz, and others arrived during the next few days. The co-conspirators discussed the plan and detailed the route the plane would take from Colombia to New Mexico. On April 21, Martin, Harnage, and other participants flew to Dallas. Appellant Christopher Reo and his brother Anthony arrived in Albuquerque on April 22. Poland testified that the Reos had been recruited by Sharer to assist in unloading the plane. Poland stated that he, Fortna, and the Reos went to examine the Alameda airport near Albuquerque, the proposed landing place for Martin's plane. Later that day, Fortna and Poland flew from Albuquerque to Dallas. Schwarz also arrived in Dallas that day.
On April 23, Harnage, Poland, and Schwarz were arrested in Dallas. Sharer apparently was not in Dallas that day and was arrested later. Based on information that Schwarz provided to the FBI, the Reo brothers were arrested in Albuquerque after the FBI observed them with Schwarz's van at the Barcelona Court Hotel. A search of their hotel room, pursuant to a warrant, produced notes and diagrams concerning traffic and police activity around the Alameda airport, a scanner, an antenna, and books containing radio frequencies used by law enforcement agencies.
Several of the arrested co-conspirators entered plea agreements with the government. The four appellants were tried together with Anthony Reo. Apart from cross-examination of government witnesses and character evidence as to Christopher Reo, none of the appellants presented any evidence in their defense. Because the jury was unable to reach a verdict concerning Anthony Reo, the district court granted him a mistrial. All four appellants were convicted of conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963. 1 In addition, Fortna and Harnage were convicted on various counts of using a telephone to facilitate the cocaine conspiracy in violation of 21 U.S.C. Sec. 843(b). Fortna, Harnage, and Sharer were convicted also on various counts of traveling in interstate commerce to promote the conspiracy in violation of 18 U.S.C. Sec. 1952. The offenses charged in the substantive counts--use of telephone and performance of interstate travel--were alleged to have been committed at various dates in January, February, March, and April 1985, the earliest date being January 28, 1985.
Appellant Harnage contends that the government impermissibly obtained evidence against him from James Smith in violation of his attorney-client privilege. Arguing that the government's use of this information violated his Fifth Amendment right to due process and privilege against self-incrimination and his Sixth Amendment right to counsel, Harnage contends that the district court should have quashed his indictment. At a pretrial hearing on the motion to quash, Harnage's attorney examined FBI Agent Evans, the main contact between Smith and the government. Based on Evans' testimony, the district court concluded that no attorney-client relationship was breached and thus refused to subpoena Smith for the hearing. 2 We agree with Harnage's claim that the district court abused its discretion in refusing to issue the subpoena. 3
The district court concluded that Harnage failed to establish all the elements of the attorney-client privilege, 4 finding (1) that Smith was not acting as a lawyer during their communications, (2) that their conversations occurred "in the presence of strangers," and (3) that "they met socially and for the purpose of committing a crime."
First, despite Smith's statements to Evans, Smith may have been acting as an attorney during his discussions with Harnage. Evans testified that Smith had been informed not to divulge information obtained in an attorney-client relationship. According to Evans, Smith...
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