United States v. Johnson

• Decision Date: 08 September 1972
• Docket Number: No. 71-3499.,71-3499.
• Citation: 465 F.2d 793
• Parties: UNITED STATES of America and Conley E. Lemons, Special Agent, Internal Revenue Service, Petitioners-Appellants, v. Al JOHNSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 793 (1972)

UNITED STATES of America and Conley E. Lemons, Special Agent, Internal Revenue Service, Petitioners-Appellants, v. Al JOHNSON, Respondent-Appellee.

No. 71-3499.

United States Court of Appeals, Fifth Circuit.

September 8, 1972.

Robert W. Rust, U. S. Atty., Miami, Fla., John M. Dowd, Trial Atty., Scott P. Crampton, Asst. Atty. Gen., Meyer

Rothwacks, John P. Burke, John M. Dowd, Joseph H. Reiter, Attys., Tax. Div., Dept. of Justice, Washington, D. C., for petitioners-appellants.

E. David Rosen, Richard M. Gale, Miami, Fla., for respondent-appellee.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this appeal the Internal Revenue Service seeks review of an order by the District Court for the Southern District of Florida which modifies an order to enforce two Internal Revenue summonses.

I.

The first summons in question, dated May 5, 1971, directed the respondent-appellee Al Johnson, an attorney, to appear before Special Agent Conley Lemons of the Internal Revenue Service on May 17, 1971, and to produce:

Documents contained in your files regarding the purchase, lease, and/or sale of real and personal property by TED NEELY.

Also, financial statements and documents relating to any and all loans negotiated by TED NEELY.

The second summons, served with the first, was identical with the first except that it covered documents relating to transactions by one August C. Sanzone a/k/a Mike Sanzone. Respondent Johnson appeared but refused to produce the requested documents. The Internal Revenue Service then sought an order directing production of the papers.

A hearing on the order to show cause issued by the district court was held on August 18, 1971. At this hearing the attorney for respondent Johnson objected to disclosure urging, first, that the documents sought were within the attorney-client privilege, and, secondly, that Johnson could invoke his clients' privilege against self-incrimination with respect to the documents sought. The government admitted that certain communications in the files might be privileged but argued that these were not the items it was primarily seeking. The government also strongly maintained that in these circumstances an attorney has no right to raise his clients' Fifth Amendment privilege.

With the acquiescence of both counsel, the court ordered that Johnson first determine which documents he asserted were privileged and to turn all others over to the Internal Revenue. The court then undertook an in camera inspection of the documents which respondent claimed were privileged.

After this in camera inspection, the court entered the following brief order:

ORDERED and ADJUDGED that:

1. Respondent\'s motion to modify the order of August 18, 1971, is granted so as to dispense with the preparation of a descriptive list of the documents submitted to the court for in camera inspection. A descriptive list of privileged records would violate the respondent\'s Fifth Amendment self-incrimination rights which may be asserted by the attorney on behalf of his client under the authority of United States v. Judson, 9 Cir. 1963, 322 F.2d 460.

2. The Government\'s motion for order to show cause is denied.

3. The summoned documents found to be nonprivileged by the court will be made available by the court to the Government.

4. The summoned documents found to be privileged and not subject to Government inspection include documents regarding the purchase, lease, and sale of real and personal property by Ted Neely and August C. Sanzone and appraisals of such property. These documents will be returned to the respondent.

The government appeals from this order arguing that the respondent did not sufficiently establish the attorney-client privilege as to these documents and that Johnson cannot raise the self-incrimination defense in this action against him alone. It should be noted that Neely and Sanzone have not attempted to intervene in these proceedings.

II.

Under the record and order entered below as presented to this court, we are unable to decide the issues presented in this case without remand to the district court for further information and findings. We must know the nature of the documents involved and the privilege which was held applicable to each.

Two grounds of privilege — attorney-client and self-incrimination — were asserted before the district court to justify withholding the documents from government inspection. The district court, as the government points out in its brief, did not specify which ground or combination of grounds was felt determinative as to the documents held privileged. Furthermore, the record and order contain only the barest indication of the nature of these documents.

This court is therefore faced with an impossible task on review. In order to overturn the order below, we would have to find that neither of the asserted privileges could apply whatever the nature of the documents. This we cannot do on the basis of the record before us.

If the only question presented on appeal were the right of the attorney to raise his client's self-incrimination defense, this court could pass on the issue. However, it is possible that this ground was not relied on by the district court at all, or only as to some of the documents. If the court below found some or all of the documents protected by the attorney-client privilege, it is impossible to pass on the correctness of the lower court's holding without knowledge of at least the general nature of the documents involved. Since we have no solid indication of the grounds relied on and the types of documents involved, we cannot determine the correctness of the order.

The government argues that the attorney-client privilege cannot apply because all that was sought were documents of a type designed to be disclosed to third parties. We recognize the validity of this argument but due to a lack of clear indication in the record, we cannot be sure that the documents excluded by the district court were of this type. We also agree that not all documents in the hands of an attorney fall within the privilege. Again, however, the...