U.S. v. Skeddle, 3:95CR736.

• Decision Date: 02 June 1997
• Docket Number: No. 3:95CR736.,3:95CR736.
• Citation: 989 F.Supp. 890
• Parties: UNITED STATES of America, Plaintiff, v. Ronald W. SKEDDLE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

989 F.Supp. 890

UNITED STATES of America, Plaintiff, v. Ronald W. SKEDDLE, et al., Defendants.

No. 3:95CR736.

United States District Court, N.D. Ohio, Western Division.

June 2, 1997.

COPYRIGHT MATERIAL OMITTED

Robert William Kern, Office of U.S. Atty., Cleveland, OH, Thomas A. Karol, Office of U.S. Atty., Toledo, OH, for U.S.

Jon D. Richardson, Sr., Kaplan, Richardson, Rost & Helmick, Toledo, OH, William M. Connelly, Connelly, Soutar & Jackson Toledo, OH, Peter R. Ginsberg, Gold & Wachtel, New York City, Robert Gold, Robert Gold, Michael Sommer, McDermott, Will & Emery, New York City, for Ronald W. Skeddle, defendant.

Sheldon S. Wittenberg, Wittenberg & Phillips, Toledo, OH, Stuart G. Nash, Brendan V. Sullivan, Jr., Barry S. Simon, Marcie R. Ziegler, Williams & Connolly, Washington, DC, for Darryl J Costin, defendant.

Jerome Phillips, Wittenberg & Phillips, Toledo, OH, Richard A. Hibey, Gordon A. Coffee, Michael K. Atkinson, Douglas N. Greensburg, Winston & Strawn, Washington, DC, for Edward B Bryant, defendant.

Gerald Arthur Messerman, Messerman & Messerman, Cleveland, OH, for David L Herzer, defendant.

Niki Z. Schwartz, Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH, John E. Martindale, Martindale, Bryztwa & Quick, Cleveland, OH, for Joseph G Corsaro, defendant.

John J. Callahan, Toledo, OH, for John R Purser, defendant.

John Czarnecki, Cooper, Walinski & Cramer, Toledo, OH, for Clarence H Martin, defendant.

J. Michael Murray, Berkman, Gordon, Murray, Palda & DeVan, Cleveland, OH, for David M Hobe, defendant.

Norman G. Zemmelman, Britz & Zemmelman, Toledo, OH, Sander Schwartz, Cook, Riley, Smith, Nance & Schwartz, Cleveland, OH, Richard G. Lillie, Lillie & Holderman, Cleveland, OH, for Floyd A Trouten, III, defendant.

Order

CARR, District Judge.

This is a criminal case in which the defendants are charged with mail and wire fraud, money laundering, and tax evasion. The indictment alleges that three former directors and officers of Libbey-Owens-Ford Company (LOF), Ronald W. Skeddle (former President and C.E.O. of LOF), Darryl Costin (former Vice-President of LOF), and Edward Bryant (former Vice-President of LOF) (the LOF defendants) conspired with another former LOF employee, John Purser, two attorneys, David Herzer and Joseph Corsaro, two accountants, Floyd Trouten and David Hobe, and a university professor, Clarence Martin, to obtain money and property fraudulently from LOF, launder the proceeds of their frauds, and evade taxes.

Pending is a motion by the LOF defendants to suppress attorney-client communications seized from the Lorain, Ohio, law firm of Wickens, Herzer & Panza. (Doc. 113). The defendants have supplemented their motion with a privilege log listing specific documents as to which they claim that the attorney-client privilege attaches. (Doc. 217 (under seal)). As to many of the documents listed in the privilege log, it appears likely, in view of the findings and conclusions expressed herein, that the crime-fraud exception to the attorney-client privilege applies; therefore, the defendants shall be granted leave to submit a revised privilege log in light of this opinion.

The materials which the LOF defendants seek to exclude were seized during execution of a search warrant at Wickens, Herzer & Panza. The defendants Corsaro and Herzer are lawyers with that firm. According to the affidavit on which the search warrant was based, Herzer conspired with the LOF and other defendants to commit the illegal acts alleged in the affidavit.

At the time I issued the warrant, I included a directive to the agents to produce directly to me for in camera inspection any documents as to which the defendant Herzer asserted the attorney-client privilege. (Doc. 113, Exh. 2, ¶ 7). During execution of the warrant, Herzer claimed privilege with regard to eleven boxes of materials; the eleven boxes were brought to my office without prior inspection by the agents.

Though I had initially anticipated inspecting the eleven boxes of materials, I concluded a week after execution of the warrant that I would permit a government "taint team" to inspect the allegedly privileged materials, rather than undertaking that inspection myself. Though it appeared that the LOF defendants were aware of the search and seizure of the materials, they had not come forward following the seizure with a demand to be heard with regard to the claim of privilege or to participate in any review that might occur. In light of the finding of probable cause that had preceded the issuance and execution of the warrant, I relinquished the responsibility for conducting the initial review to the taint team.

By failing to review all eleven boxes of materials, I, according to the defendants' motion to suppress those materials, violated their rights under the Fourth and Fifth Amendments and permitted the government to gain improper access to and use of materials covered by the attorney-client privilege. For the reasons that follow, I disagree.

I. Fourth Amendment Challenge

The defendants claim that my failure to conduct an in camera review of the materials as to which the defendant Herzer asserted the attorney-client privilege as the warrant was being executed violated the Fourth Amendment rights of the LOF defendants. While I agree that these defendants have standing to assert Fourth Amendment challenges to the search and seizure of materials from their lawyers, e.g., United States v. Knoll, 16 F.3d 1313, 1321 (2d Cir.1994); DeMassa v. Nunez, 770 F.2d 1505, 1506-07 (9th Cir.1985), I find no basis in the Fourth Amendment for excluding the materials simply because I did not undertake the review that I initially contemplated issuing the warrant.

Aside from a Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), challenge, which I have rejected,¹ the defendants have not contested the adequacy of the probable cause showing in the affidavit, which was supplemented by oral testimony.² They have not challenged the nexus between that showing and the warrant's definition of the premises to be searched and items to be seized.³ They have not challenged the scope of the search or seizure (i.e., claimed that places were searched or items were seized beyond the limits of the warrant).

Thus, before the materials came into the government's hands and view, there had a been finding of probable cause to believe that the LOF defendants and one of their lawyers, the defendant Herzer, were jointly engaged in criminal activities. That finding was based on information independent of the materials that later were seized. The sufficiency and validity of that finding have not been contested by the defendants.

Nonetheless, the defendants contend that

[D]ocuments reflecting attorney-client communications are entitled to special protection under the Fourth Amendment, because of the "intrinsic high expectation of privacy" such documents enjoy. OKC Corp. v. Williams, 461 F.Supp. 540, 542 (N.D.Tex.1978). As a result, "a more rigorous fourth amendment standard ought to be applied to their seizures than to seizures of other materials." Id. at 553; see also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 959 (3d Cir.1984) (court must "scrutinize carefully the particularity and breadth of [a] warrant authorizing the search [of a law firm], the nature and scope of the search, and any resulting seizure."); National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) ("a law office search should be executed with special care to avoid unnecessary intrusion on attorney-client communications.").

(Doc. 154 at 10). See also Doc. 113 at 9; 217 at 10-23 (under seal)). See generally Note, Law Office Searches: The Assault on Confidentiality and the Adversary System, 33 Am. Crim.L.Rev. 1251 (1996).

Aside from their complaints about post-seizure handling of the seized materials, the defendants have not explained how either the search for or seizure of the documents in this case disregarded the standards for law office searches. The showing of probable cause was more than adequate. The warrant did not issue until after the affidavit had been supplemented by oral testimony. The defendants have not contended that I failed to "scrutinize carefully the particularity and breadth" of the warrant, to ensure that it was limited to the showing of probable cause, which encompassed criminal misconduct by the lawyer whose office was to be searched.⁴ The defendants have raised no complaint about the scope of either the search or seizures. Though a lot of material was seized, none of it was outside the reach of the warrant, which, in turn, was based on an unchallenged finding of probable cause. The predicates for a law office search were satisfied, and the search itself was conducted in accordance with the directives of the warrant.

The defendants claim that cases such as In re Antitrust Grand Jury, 805 F.2d 155 (6th Cir.1986), stand for the proposition that the Fourth Amendment requires post-search in camera review before release of the documents to the government. Like Antitrust Grand Jury, many of the cases cited by the defendants are distinguishable on the basis that they involve grand jury subpoenas directed to lawyers. See In re Richard Roe, Inc., 68 F.3d 38 (2d Cir.1995); In re Grand Jury Subpoena, 31 F.3d 826 (9th Cir.1994); In re John Doe, Inc., 13 F.3d 633 (2d Cir. 1994); In re Federal Grand Jury Proceedings, 938 F.2d 1578 (11th Cir.1991); In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir.1987); In re Sealed Case, 754 F.2d 395 (D.C.Cir.1985); In re Grand Jury Proceedings (John Doe), 754 F.2d 154 (6th Cir. 1985); In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032 (2d Cir.1984); In re Special September 1978 Grand Jury, 640 F.2d 49 (7th Cir.1980).

In those cases, there was no prior judicial determination, as there was in this case, of probable cause as to the joint criminality between the attorney and his clients. Absent such showing it...