United States v. King, No. CR 81-366 MRP.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Citation: 536 F. Supp. 253
• Docket Number: No. CR 81-366 MRP.
• Parties: UNITED STATES of America, Plaintiff, v. Jennifer J. KING, Defendant.
• Decision Date: 15 March 1982

536 F. Supp. 253

UNITED STATES of America, Plaintiff,
v.
Jennifer J. KING, Defendant.

No. CR 81-366 MRP.

United States District Court, C. D. California.

March 15, 1982.

536 F. Supp. 254

COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Andrea Sheridan Ordin, U. S. Atty. by Richard E. Drooyan, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff

Michael J. Lightfoot, Robert M. Talcott, Talcott, Vandevelde & Woehrle, Los Angeles, Cal., for defendant.

OPINION

PFAELZER, District Judge.

Defendant, an attorney, is charged with obstructing justice by counseling an individual to lie to the grand jury that was investigating charges against the defendant's clients. The individual in question was actually a government informant who tape-recorded the crucial conversation with the defendant. The tape recording of the conversation and the testimony of the informant constitute the principal evidence against the defendant. In the motion before the court, the defendant moves to suppress all evidence of the conversation on the

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grounds that (1) the conversation is protected by the attorney-client privilege, (2) the government, through its use of an informant, illegally interfered with the defendant's representation of her clients in violation of the Sixth Amendment, (3) the government intruded into the attorney-client setting without first obtaining a warrant, in violation of the Fourth Amendment, and (4) neither party to the conversation "consented" to be recorded, as required by 18 U.S.C. § 2511(2)(c)

I. FACTS

In early 1981, the government commenced an investigation into the business dealings of Harold J. Smith ("Smith") and his two corporations, Muhammad Ali Amateur Sports, Inc., and Muhammed Ali Professional Sports, Inc. The investigation focused on Smith's banking transactions with Wells Fargo Bank ("Bank"). In late February 1981, Smith retained the defendant as an attorney to represent him and his corporations in the federal criminal investigation as well as in pending state civil proceedings instituted by the Bank. Smith's two corporations ceased operation in February 1981 in the wake of the investigation.

In preparation of the defense of her clients, the defendant attended a series of meetings at Lake Tahoe, Nevada over the February 28-March 1, 1981 weekend to discuss the facts of the case. Several persons attended the meetings, including Smith and his personal secretary, Terisa Key ("Key"). During the meetings, documents relating to Smith's transactions with the Bank were shown to the defendant and the contents of the documents were discussed by defendant and Key. At the conclusion of the meetings, Smith delivered certain of these documents to the defendant and she retained them. The parties sharply dispute what documents were shown to defendant at Lake Tahoe and what documents were later delivered to her there. On March 9, 1981, the defendant received a subpoena from the grand jury calling for her as the custodian of records to produce certain of her clients' documents. Two days later, she appeared before the grand jury with a number of documents, among which were two sets of documents she had received at the Lake Tahoe meetings. In response to the prosecutor's questions, the defendant stated to the grand jury that, at the time she received those sets of documents, she did not see or receive any other documents falling within the scope of the subpoena.

In her representation, the defendant had frequent contact with Key, who was a principal employee of defendant's corporate clients as well as Smith's personal secretary.¹ On March 4, 1981, Key agreed, in exchange for a grant of immunity, to provide information to the government concerning its investigation of Smith and his corporations. Key informed the defendant and Smith's other attorneys that she was cooperating with the Federal Bureau of Investigation ("FBI"), but she also agreed to keep the defense team informed of her interviews with that agency. In late March, Key further agreed to contact the defense team when she received a grand jury subpoena so that they could "go over it" with her.

While cooperating with the government, Key informed the FBI that the defendant had previously told her to lie to federal investigators. In an effort to corroborate this report, the government decided to use Key to tape-record conversations with the defendant. The investigators did not, however, seek a warrant for that purpose. In furtherance of this plan, on April 6, 1981, two days after Smith had been arrested for making a false passport application, Key called the defendant, told the defendant that she had received a subpoena to appear before the grand jury, and set up a meeting for the following day to discuss the subpoena. On April 7, Key, with a recording device concealed on her person, visited the defendant at her office under instructions from the government not to ask the defendant about Smith's defense. At the meeting,

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the defendant and Key generally discussed Key's forthcoming grand jury testimony, but, during part of the conversation, defendant focused on her own prior appearance before the grand jury. The defendant expressed concern that she might be indicted on the basis of her statements to the grand jury concerning what documents she had seen at Lake Tahoe. It is the government's position that this concern led the defendant to advise Key to lie to the grand jury about what documents the defendant had seen at the Lake Tahoe meeting.² The defendant denies telling Key to lie and claims that she was unaware that her conversation with Key was being recorded. She did know, however, that Key was a government informant and that Key had been granted immunity from prosecution. Thus, as the defendant put it, "we didn't trust her."

On April 8, 1981, the grand jury handed down a four-count indictment against the defendant, charging in Count 4 that she had obstructed justice in violation of 18 U.S.C. § 1503 by advising Key on April 7, 1981 to lie to the grand jury.³ After trial on all counts, the jury deadlocked on Count 4, and the court declared a mistrial as to that count. The other three counts resulted in judgments of acquittal,⁴ leaving only Count 4 for retrial. Defendant's motion to suppress is before the court preliminary to the second trial.

II. DISCUSSION

Defendant's motion raises substantial questions concerning the scope of the attorney-client privilege, the need for confidentiality in the attorney-client relationship, and the circumstances under which the government should be allowed to interfere with that relationship in enforcing the criminal law. For the reasons set forth in the discussion that follows, the court has concluded that the motion should be denied.

A. Attorney-Client Privilege

Defendant asserts the attorney-client privilege on behalf of her clients, Smith and his corporations, and argues that the privilege requires suppression of all evidence of the April 7, 1981 conversation.⁵

As a threshold matter, the government contends that the defendant lacks standing to assert the privilege. With respect to the standing issue, it is clear that the defendant "must establish the fact of an attorney-client relationship before she can invoke the privilege." In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980). In this case, the government is compelled to concede that at the time of the conversation the defendant was the attorney for Smith and his corporations. Indeed, the first trial proceeded on the premise that the meeting on April 7 concerned

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the criminal investigation of defendant's clients and that it involved the defendant, as counsel for Smith and his corporations, and Key, as a former employee of defendant's clients. Unquestionably, an attorney-client relationship existed here since the conversation related to a criminal investigation of the clients. Upjohn v. United States, 449 U.S. 383, 394, 101 S.Ct. 677, 685, 66 L.Ed.2d 584 (1981). Further, the relationship existed even though Key was not an employee of Smith or the corporations at the time of the conversation. In re Coordinated Pretrial Proceedings In Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1361 n.7 (9th Cir. 1981) (applying Upjohn), cert. denied, ___ U.S. ___, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982).⁶

Since "it is universally accepted that the attorney-client privilege may be raised by the attorney," Fisher v. United States, 425 U.S. 391, 402 n.8, 96 S.Ct. 1569, 1577 n.8, 48 L.Ed.2d 39 (1976), the defendant may assert the privilege in this case. See Proposed Rule 503(c), Fed.R.Evid., Advisory Committee Notes, reprinted in 2 J. Weinstein, Evidence 503-1, at 503-6 to 503-7 (1981) (attorney has obligation to invoke privilege for client);⁷ ABA Code of Professional Responsibility EC 4-4 (1980) (same). The fact that defendant's clients are not parties to the instant proceeding is irrelevant in deciding the question of standing, see C. McCormick, Evidence § 92, at 192 (2d ed. 1972), and, in any event, Smith has asserted the privilege directly by filing an affidavit with the court. The government's position on the standing issue is therefore without merit.

Although the defendant has standing to assert the privilege, she must carry the burden of establishing that the privilege extends to the conversation at issue here. Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981).⁸ She has failed to carry that burden for several reasons.

First, exclusion of the evidence in question would not serve the purpose of the privilege. The privilege plays an important role in the administration of justice; by ensuring the continued secrecy of attorney-client communications made in confidence, the privilege encourages uninhibited discussion between the attorney and client. See Upjohn, supra, 449 U.S. at 389,...