U.S. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO
| Citation | 119 F.3d 210 |
| Decision Date | 23 July 1997 |
| Docket Number | No. 2187,AFL-CIO,D,2187 |
| Parties | 155 L.R.R.M. (BNA) 3012, 134 Lab.Cas. P 10,052 UNITED STATES of America, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,; The Commission of La Cosa Nostra; Anthony Salerno, also known as Fat Tony; Matthew Ianniello, also known as Matty the Horse; Anthony Provenzano, also know as Tony Pro; Nunzio Provenzano, also known as Nunzi Pro; Anthony Corallo, also known as Tony Ducks; Salvatore Santoro, also known as Tom Mix; Christopher Furnari, Sr., also known as Christie Tick; Frank Manzo; Carmine Persico, also known as Junior, also known as The Snake; Gennaro Langella, also known as Gerry Lang; Philip Rastelli, also known as Rusty; Nicholas Marangello, also known as Nicky Glasses; Joseph Massino, also known as Joey Messina; Anthony Ficarotta, also known as Figgy; Eugene Boffa, Sr.; Francis Sheeran; Milton Rockman, also known as Maishe; John Tronolone, also known as Peanuts; Joseph John Aiuppa, also known as Joey O'Brien, also known as Joe Doves, also known as Joey Aiuppa; John Phillip Cerone, also known as Jackie the Lackie, also known as Jackie Cerone; Joseph Lombardo, also known as Joey the Clown; Angelo Lapietra, also known as The Nutcracker; Frank Balistrieri, also known as Mr. B; Carl Angelo DeLuna, also known as Toughy; Carl Civella, also known as Corky; Anthony Thomas Civella, also known as Tony Ripe; General Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Jackie Presser, General President; Weldon Mathis, General Secretary-Treasurer; Joseph Trerotola, also known as Joe T, First Vice President; Robert Holmes, Sr., Second Vice President; William J. McCarthy, Third Vice President; Joseph W. Morgan, Fourth Vice President; Edward M. Lawson, Fifth Vice President; Arnold Weinmeister, Sixth Vice President; John H. Cleveland, Seventh Vice President; Maurice R. Schurr, Eighth Vice President; Donald Peters, Ninth Vice President; Walter J. Shea, Tenth Vice P |
| Court | U.S. Court of Appeals — Second Circuit |
Karen B. Konigsberg, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Haber, Assistant United States Attorney for the Southern District of New York, of counsel), for Plaintiff-Appellee.
Christopher B. Mead, London & Mead, Washington, DC (Robert L. Vogel, of counsel), for Intervenor-Appellant.
Barbara Zack Quindel, Election Officer, Washington, DC (Theodore M. Lieverman, Tomar, Simonoff, Adourian, O'Brien, Kaplan, Jacoby & Graziano, Cherry Hill, NJ, of counsel), for Applicant-Appellee.
Before: WINTER, Chief Judge, ALTIMARI and CABRANES, Circuit Judges.
Appellant Jere B. Nash III ("Nash") was the campaign manager for Ron Carey's ("Carey") 1996 reelection bid for the office of president of the International Brotherhood of Teamsters ("IBT"). We consider here whether Nash may assert an attorney-client privilege over communications with counsel for the Campaign to Re-Elect Ron Carey ("Carey Campaign" or "Campaign") regarding Campaign matters. The Carey Campaign has waived any attorney-client privilege it possesses with respect to these
communications, wishing to disclose their content as part of its effort to cooperate with a currently pending investigation into alleged fundraising improprieties. Nash appeals from an order of the United States District Court for the Southern District of New York (David N. Edelstein, Judge ) holding that Nash could not individually assert an attorney-client privilege with respect to the conversations at issue, and therefore could not prevent their disclosure by the Campaign. United States v. International Bhd. Of Teamsters, 961 F.Supp. 665 (S.D.N.Y.1997). We heard arguments on the appeal on June 12, 1997, and on that date entered a summary order affirming the order of the district court and indicating that an opinion would follow in due course. On July 1, 1997, we denied Nash's motion for a stay pending a petition for rehearing. This opinion explains our reasons for affirming the order of the district court.
The following facts drawn from the record are not disputed by the parties. This case arises from a 1989 consent decree entered into between the United States and the IBT, pursuant to which IBT elections are monitored by an Election Officer appointed by the United States District Court for the Southern District of New York (David N. Edelstein, Judge), which retains jurisdiction over enforcement of the decree. On February 4, 1997, following the reelection of Carey as president of the IBT, his opponent, James Hoffa, Jr. ("Hoffa"), lodged a formal protest with the Election Officer alleging that the Carey Campaign had engaged in certain impermissible fundraising activities. The Election Officer initiated an investigation.
IBT President Carey, on behalf of the Carey Campaign, authorized Cohen, Weiss & Simon ("CW & S"), counsel to the Campaign since June 1995, to cooperate fully with the investigation and to provide the Election Officer with all necessary information. During the course of the investigation, Susan Davis ("Davis"), a partner at CW & S, informed the Election Officer that she and other attorneys at her firm had spoken with appellant Nash, who had been hired as campaign manager for the Carey Campaign in February 1996, regarding issues relevant to the investigation. She also informed the Election Officer that Carey had decided to waive the Campaign's attorney-client privilege with respect to these conversations, and had instructed her to disclose their substance to the Election Officer. Nash thereupon sought to prevent such disclosures, arguing that he was entitled to assert a personal claim of attorney-client privilege with regard to these conversations.
Soon after becoming campaign manager in February 1996, and frequently thereafter, Nash spoke with attorneys from CW & S on a variety of Campaign matters. CW & S had served as counsel to the Campaign continuously since June 1995, and had never represented Nash or any other Campaign employee in an individual capacity. The events and conversations underlying the present dispute took place in March 1997. On March 6, a CW & S associate working under Davis, Nathaniel Charney ("Charney"), was on the line during a telephone conversation between Nash and a representative of the Election Officer's office regarding the investigation. When asked at the hearing before the district court why Charney had been on the line, Nash responded, Nash had also spoken with Charney in preparation for the telephone conversation to ensure that, in Nash's words, "we did what we needed to do as a campaign in responding to their requests for information."
On the following day, Nash received a telephone call from Davis requesting that he meet with attorneys from CW & S to discuss the Hoffa protest. The meeting took place at the offices of CW & S on March 10. Davis testified that she informed Nash at the meeting that CW & S had asked to speak with him as counsel for the Carey Campaign. She also testified that she told Nash that, because CW & S represented the Carey Campaign and Nash was the campaign manager, the conversation was "privileged." To explain her point about privilege to Nash, Davis contrasted Nash's situation with that of a person not employed by the Campaign with whom CW & S attorneys had met on Davis asserts, and Nash does not dispute, that the substance of the March 10 meeting was limited to the allegations being made against the Campaign. Although Nash testified in the district court that he believed all along that his interests were identical to the Campaign's, and that CW & S represented him individually in addition to representing the Campaign, at no point during his conversations with CW & S did Nash seek, nor did CW & S provide, any personal legal advice. Neither, however, did the CW & S attorneys directly inform Nash prior to or during the March 10 meeting that they did not represent him personally, or that conflicts sometimes arise between the interests of an organization and the interests of one of its employees.
the previous day, a person whom they had warned that his statements were not privileged. Davis also testified that Nash was told that his comments to the CW & S attorneys would be reported to Carey, and that Nash was cautioned not to disclose the substance of the meeting to individuals outside of the Carey Campaign, since this could destroy the "privileged" nature of the conversation. The CW & S attorneys understood these references to "privilege" to mean the privilege belonging to the Carey Campaign, rather than to Nash individually, but there was never an explicit discussion between CW & S and Nash as to whose "privilege" was involved or whose prerogative it would be to waive it.
Two days after the New York meeting, on March 12, Nash received a telephone call from three CW & S lawyers and again answered questions pertaining to the Hoffa protest; once again, Nash did not seek or receive any personal legal advice. At the close of the conversation, Nash asked whether the conversation had been privileged. He was informed that it was, but again there was no suggestion as to whose privilege it might be. On March 13, attorneys from CW & S...
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