U.S. v. Rogers, 83-5037

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation751 F.2d 1074
Docket NumberNo. 83-5037,83-5037
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Gerald L. ROGERS, Defendant-Appellee.
Decision Date15 January 1985

Lourdes G. Baird, Los Angeles, Cal., for plaintiff-appellant.

Pierce O'Donnell, O'Donnell & Gordon, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HUG and NELSON, Circuit Judges, and EAST, * District Judge.

HUG, Circuit Judge:

The Government appeals from the district court's dismissal of an indictment because of governmental misconduct. The district court dismissed the indictment with prejudice on the ground that a Government investigator improperly interfered with the attorney-client relationship between Rogers and an attorney who had previously represented him. We reverse.


Special Agent William Taylor of the Internal Revenue Service was responsible for the Government's criminal investigation into a motion picture tax shelter sold by Gerald Rogers. Rogers's business dealings, including the motion picture tax shelter, were also the subject of investigation by the Securities and Exchange Commission, the California Department of Corporations, and the California Department of Justice. Taylor learned from the California Department of Corporations that Ira Miller had served as Rogers's lawyer for a period of time during 1975 and 1976, and Taylor arranged to meet with Miller.

On September 22, 1977, Taylor and IRS agent Carl DiUbaldo met with Miller at Miller's office. Taylor identified himself as an IRS special agent, and he told Miller that he was conducting a criminal investigation of the motion picture tax shelter. During the interview, Miller told Taylor that he did not give Rogers a tax opinion and that he had no involvement in the tax shelter. At Taylor's request, Miller gave a sworn statement. 1

On June 5, 1979, after learning that Miller had talked to another attorney on behalf of Rogers in 1975 or 1976 about purchasing an old television series, Taylor talked to Miller on the telephone about Miller's negotiations regarding the television series. Taylor made a file memorandum recounting that telephone conversation. 2

In April 1982, Rogers was charged with nine counts of mail fraud in violation of 18 U.S.C. Sec. 1341 and twenty-one counts of aiding and assisting the filing of a false tax return in violation of 26 U.S.C. Sec. 7206(2). The charges arose out of the motion picture tax shelter.

In December 1982, Rogers moved to dismiss the indictment with prejudice on four grounds: (1) pre-indictment delay, (2) Government misconduct in connection with the timing of arrest and setting of bail, (3) Government misconduct in the form of interference with the attorney-client relationship, and (4) grand jury abuse. The Government then moved in limine for a ruling on the admissibility of Miller's testimony.

In January 1983, the district court granted the motion to dismiss the indictment with prejudice on the ground that Taylor improperly interfered with the attorney-client relationship between Miller and Rogers. The district court also ruled that the first two grounds for dismissal of the indictment urged by Rogers, pre-indictment delay and misconduct regarding arrest and bail, could not be the basis for dismissal because they had not resulted in prejudice to Rogers. The district court did not rule on the final ground urged for dismissal, grand jury abuse, nor did it rule on the Government's motion in limine.


Because it is a drastic step, dismissing an indictment is a disfavored remedy. See United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966). Courts, however, have dismissed indictments based on constitutional grounds or on the court's inherent supervisory power. See United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). In either case, an indictment may not be dismissed for governmental misconduct absent prejudice to the defendant. United States v. Sears, Roebuck & Co., Inc., 719 F.2d 1386, 1391-1392 (9th Cir.1983) (constitutional grounds), cert. denied, --- U.S. ----, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984); United States v. Owen, 580 F.2d 365, 367 (9th Cir.1978) (supervisory power).

Miller's sworn statement discloses that Rogers did not ask for, and Miller did not give, formal advice or an opinion on the validity of the tax shelter. The district court essentially concluded that this information was protected by the attorney-client privilege, and that Taylor intentionally sought to obtain the information from Miller by suggesting threateningly that Miller's involvement in the tax shelter was the subject of criminal investigation. The district court found "substantial and devastating prejudice" in Miller's disclosure of confidential information to Taylor. In particular, the district court found that Miller's disclosure resulted in "the total dissolution of defendant's major defense of good faith." The court also found that the "disclosure undoubtedly had a very strong influence upon the Government's decision to proceed with the investigation and ultimately seek an indictment." The court found that Miller's statements to Taylor disclosed "the ultimate fact, absence of good faith." The district court stated that the prejudice touching on Rogers's due process rights prevented a trial on the merits and that the court was also exercising its supervisory powers.


We are here concerned with the question of whether Agent Taylor's contact with Rogers's former attorney was so outrageous as to justify the dismissal of the indictment with prejudice. Although the district court's decision and the briefs of the parties deal principally with the issue of whether the questions and answers would be covered by the attorney-client privilege, the question is actually whether the questions and answers involved a breach of the attorney's professional obligation of confidentiality. The next question is--even assuming that the agent asked questions that resulted in revealing confidential communications from the client--whether this justifies the dismissal of the indictment.

The attorney-client privilege is an evidentiary rule designed to prevent the forced disclosure in a judicial proceeding of certain confidential communications between a client and a lawyer. In this case, there has not been any forced disclosure of a confidential communication in a judicial proceeding. Whether the communication between Rogers and his attorney, Miller, is in fact privileged and, thus, whether evidence of that communication can be objected to and excluded at trial, is a matter to be resolved in the trial court if the case proceeds to trial.

The central question in this case is whether an agent of the Federal Government has improperly induced an attorney to breach his ethical duty of confidentiality to his client and, if so, whether that conduct was so outrageous, and resulted in such prejudice to the defendant, as to justify dismissing the indictment with prejudice.


We must emphasize at the outset that this is not a case in which the defendant's sixth amendment right to counsel is involved. Miller was not an attorney who was in the process of representing Rogers in defending against a criminal charge; Miller was, instead, a potential witness because of past representation. Thus, cases in which a Government agent or Government informers violated a constitutional right of a defendant by interfering with the attorney-client relationship in the course of a criminal defense are not applicable. Here, we have only a situation in which a potential witness, who was an attorney, talked to federal agents about past representation of a client; this, at most, involved a breach of the attorney's ethical obligation of confidentiality.

Even in cases in which there has been a violation of the defendant's sixth amendment constitutional rights by interference with the attorney-client relationship, the relief has not been to dismiss the indictment with prejudice. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981). The Court in Morrison stated:

Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant cases reflect this approach.

Id. at 364-65, 101 S.Ct. at 667-68. The Court then observed that in two cases in which law enforcement officers improperly overheard pretrial conversations between the defendant and his attorney, these transgressions by the Government did not result in dismissal of the indictment but, rather, only a reversal of the conviction, leaving the Government free to proceed with a new trial. The Court cited, as cases in point, Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966) and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967). Id. 449 U.S. at 364-65, 101 S.Ct. at 668. The Court went on to state:

Similarly, when before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted.

Id. at 365, 101 S.Ct. at 668. The Court cited, as cases in point, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The Court also noted in Morrison that similar principles apply to other...

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