United States v. Saccoccia, Cr. No. 91-115-T (D. R.I. 8/__/1995), Cr. No. 91-115-T.
| Decision Date | 01 August 1995 |
| Docket Number | Cr. No. 91-115-T. |
| Parties | UNITED STATES OF AMERICA, v. STEPHEN A. SACCOCCIA, et al. |
| Court | U.S. District Court — District of Rhode Island |
Stephen A. Saccoccia, Donna Saccoccia, and Vincent "Mickey" Hurley (the "defendants") have been convicted of various money-laundering offenses and of RICO conspiracy to launder money derived from the illegal sale of narcotics. Their Judgment in a Criminal Case Orders require them to forfeit the sum of $136,344,231.87, which represents the proceeds of the racketeering activity in which they participated.
The Government, relying on 18 U.S.C. § 1963(k) and 21 U.S.C. § 853(m) as incorporated by 18 U.S.C. § 982(b)(1)(A), has applied for an order authorizing it to depose several attorneys who represented the defendants at various stages of the criminal prosecution and further requiring the production of unspecified documents for the purpose of identifying and locating assets of the defendants that may be used to satisfy the forfeiture judgment. The principal questions presented are whether allowing the Government to depose counsel with respect to the fee arrangements between them and their clients would violate the attorney-client privilege, the Fifth Amendment's privilege against self-incrimination and/or the defendants' Sixth Amendment right to counsel. For reasons stated below, I find that the answer to each of these questions is, no.
The forfeiture order constitutes a money judgment against the defendants and may be satisfied either from the proceeds of their racketeering activity, property derived from those proceeds or, if such proceeds or property have been concealed, from any other property belonging to the defendants. 18 U.S.C. §§ 1963(a)(1)(3) and (m);1 United States v. Saccoccia, ___ F.Supp.___ []; See, United States v. Navarro-Ordas, 770 F.2d 959, 970 (11th Cir. 1985); United States v. Ginsburg, 773 F.2d 798, 801 (7th Cir. 1985).
The Government's application is prompted by the fact that only a portion of the amount declared forfeited has been recovered and by indications that the defendants may have considerable sums of money at their disposal as evidenced by the number of attorneys they have employed.
At the time the Government filed its application, appeals by all of the defendants were pending and Stephen Saccoccia was awaiting trial in California on related conspiracy and money-laundering charges. In addition, unrelated litigation was pending regarding the Court's authority to adopt a local rule requiring prosecutors to obtain judicial approval before issuing subpoenas directing lawyers to provide evidence concerning their clients. Because of the likelihood that resolution of those cases would significantly affect the issues presented in this case, the Court deferred action on the Government's application until those cases were completed. That time, now, has arrived. The Court of Appeals for the First Circuit has affirmed the convictions and forfeiture orders against all of the defendants. Cite 2 1st Cir. cases—the one that affirms the convictions of Donna, Hurley, etc. and the other which affirms conviction of Stephen. In addition, the California indictment against Stephen Saccoccia was dismissed by the Government.2 Finally, the First Circuit has upheld Local Rule 3.8(f) that requires prosecutors to obtain Court approval before issuing subpoenas that seek information from attorneys regarding their dealings with clients. Whitehouse v. U.S. District Court [josh, this is a 1st Cir. case which was handed down on 4/20/95]
The defendants and their counsel urge that the Government's application should be denied for a variety of reasons. In accordance with the admonition that courts should "avoid deciding constitutional questions presented unless essential to proper disposition of a case," Harmon v. Brucker, 355 U.S. 579, 581; 78 S.Ct. 433; 2 L.Ed.2d 503 (1958), the Court will first consider those arguments that do not raise Constitutional issues.
The purpose of the attorney-client privilege is to encourage the client to make full disclosure of all pertinent facts to the attorney so that the attorney may render informed legal advice with respect to the matters about which the attorney is consulted. Fisher v. U.S., 96 S.Ct. 1569, 1577 (1976); Cherney, 898 F.2d 565, 567 (7th Cir. 1990). The privilege is based on the concern that if damaging information communicated in confidence to an attorney later might be revealed to third parties, the client would be deterred from making a full disclosure. Fisher, p. 1577; See, In re Grand Jury Subpoena, 781 F.2d 238, 247 (2nd Cir. 1985).
The privilege sometimes may deprive the Government of evidence necessary to convict a criminal. However, that is the price extracted by a system of justice that places a premium on an individual's right to the effective assistance of counsel. Matter of Grand Jury Proceeding Cherney, 898 F.2d 565, 569 (7th Cir. 1990).
Nevertheless, because the privilege may cause relevant information to be withheld from the fact finder, it applies only to the extent necessary to achieve its purpose. Fisher, p. 1577; Cherney, p. 567. Consequently, the attorney-client privilege does not extend to all occurrences and conversations between attorney and client. With respect to information provided by the client, the privilege "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Fisher, p. 1577. To put it another way, communications by the client are privileged only if they are both confidential and made in order to obtain effective legal assistance. Cherney, p. 567; In re Grand Jury Proceedings (Doe), 602 F.Supp. 603, 607 (D.R.I. 1985); In re Grand Jury Subpoena, 781 F.2d 238, 247 (2nd Cir. 1985) []
Moreover, in the criminal context, the privilege is limited to communications regarding advice sought with respect to past conduct.
The "crime-fraud" exception renders the privilege inapplicable to information provided for the purpose of obtaining advice about on-going criminal activity or plans to commit future criminal acts. In re Grand Jury Proceedings (Doe), 602 F.Supp. 608 (D.R.I. 1985). The crime-fraud exception applies even though the attorney may be unaware that the client's purpose is to further an on-going or future criminal scheme. Such a purpose constitutes an abuse of the attorney-client relationship and, under such circumstances, the purpose of the privilege is not served by preventing disclosure. In re Grand Jury Proceedings (Doe), 602 F.Supp. 608-609 (D.R.I. 1985); Hodge and Zweig at p. 1355; Grieco v. Meachum, 533 F.2d 713, 714 n. 4 (1st Cir. 1976).
The party asserting the attorney-client privilege has the burden of proving its applicability. U.S. v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986); U.S. v. Gertner, ___ F.Supp __ (1/11/95 D.Mass.) However if the Government claims that the "crime-fraud" exception applies, it has the burden of making a prima facie showing to that effect. In re Grand Jury Proceedings (Doe), 602 F.Supp. 608 (D.R.I. 1985).
Generally speaking, neither the identity of a client nor information regarding fee arrangements is protected by the attorney-client privilege. In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990); In re Grand Jury Subpoenas, 781 F.2d 238, 247 (2nd Cir. 1985); See also U.S. v. Strahl, 590 F.2d 10, 11 (1st Cir. 1978). The reason for excluding fee information is that, ordinarily, such information does not constitute a confidential communication relating to the advice sought. Matter of Grand Jury Proceeding Cherney, 898 F.2d 565, 567 (7th Cir. 1990); In re Grand Jury Subpoena (Doe), 781 F.2d 238, 247-48 (7th Cir. 1986). In the words of the Second Circuit, "While consultation with an attorney, and payment of a fee, may be necessary to obtain legal advice, their disclosure does not inhibit the ordinary communication necessary for an attorney to act effectively, justly, and expeditiously."
However, there may be exceptional cases in which fee information is so intertwined with the matter about which counsel is consulted that the threat of disclosure would deter the client from communicating information necessary to obtain informed legal advice. The case law reflects considerable confusion with respect to the criteria to be applied in determining when those circumstances exist. Some decisions seem to suggest that fee information is protected when it is likely to incriminate the client with respect to the matters that prompted him to consult counsel. [supply cites] [See cases cited at 906 F.2d 1488 and 864 F.Supp. 1006] That notion often is attributed to the Ninth Circuit case of Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960). Thus in U.S. v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1977), the Court required disclosure of the fee information at issue but cited Baird for the proposition that ". . . the nature of [a] client's fee arrangement may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought." 548 F.2d at 1353.
However, the Ninth Circuit, itself, now has rejected the notion that fee information becomes privileged merely because it may be incriminating attorney-client communications. In re Grand Jury Subpoenas, 803 F.2d 493, 497 (9th Cir. 1986).[josh, double check because judge has not read this case] That view is shared by those circuits that have most recently addressed the issue. In re Grand Jury, 926 F.2d 348, 352 (4th Cir. 1991); Matter of Grand Jury Cherney, 898 F.2d 565, 567 (7th Cir. 1990); In re Grand Jury...
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