United States v. Woodall

• Citation: 438 F.2d 1317
• Decision Date: 24 February 1971
• Docket Number: 28353.,No. 28352,28352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John David WOODALL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

438 F.2d 1317 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. John David WOODALL, Defendant-Appellant.

Nos. 28352, 28353.

United States Court of Appeals, Fifth Circuit.

May 18, 1970.

Rehearing Denied July 7, 1970.

On Rehearing February 24, 1971.

John P. Farra, Clyde Woody and Marian Rosen, Houston, Tex., for appellant.

Macon L. Weaver, U. S. Atty., R. Macey Taylor, Asst. U. S. Atty., Birmingham, Ala., for appellee.

Before COLEMAN, GOLDBERG, and MORGAN, Circuit Judges.

On Rehearing En Banc February 24, 1971.

COLEMAN, Circuit Judge:

This is the second appearance of this case in this Court. It was first here sub nom. Tucker v. United States, 5 Cir., 1969, 409 F.2d 1291. The detailed history of the matter appears in that opinion. For present purposes it is sufficient to say that Woodall was under three multiple count indictments charging him with robbery of federally insured institutions in or near Birmingham. On February 21 and 23, 1966, on his own motion, under old Rule 11,¹ represented by privately retained counsel, Woodall withdrew his not guilty pleas to two indictments and entered pleas of guilty. The third indictment is still pending in the District Court.

On February 23, 1966, concurrent sentences of twenty years were imposed in each case. It is undisputed that prior to the plea changes the District Court gave Woodall no advice as to the maximum possible penalties he would face upon taking that action.

The prior Court held:

"It is our judgment that this situation requires a remand of the case to the trial court for an evidentiary hearing to determine whether Woodall knew the maximum possible penalties, rather than a reversal by this Court of his convictions. Lane v. United States, 5 Cir., 373 F.2d 570 (1967). It is well settled that a plea of guilty is invalid as not being understandingly entered if the defendant does not know the maximum possible penalty for the offense. Marvel v. United States, 380 U.S. 262, 85 S.Ct. 953, 13 L.Ed.2d 960 (1965). The question, however, is not whether he learned of such penalty from the judge, in a formal proceeding, but whether he had knowledge as to such matter, whether it was from the judge, his lawyer, his bondsman, or from some other source. Kotz v. United States, 8 Cir., 353 F.2d 312 (1965); United States v. Kent, 7 Cir., 397 F.2d 446, 451 (1968). Woodall\'s case will be remanded to the trial court for the limited purpose of hearing and determining whether he knew the maximum possible penalties for the charges to which he pled guilty. If it should be found that he did not, the trial court will set aside his convictions and grant him a new trial. If it should be found that he did, the judge will make his findings and conclusions, and direct that the record of that proceedings be returned to this Court."

Upon remand, the government sought to show, and did show, by the testimony of Woodall's former attorney that prior to the entry of the pleas of guilty he advised his client of the maximum applicable penalties. This was done over the repeated objection of Woodall's present counsel, newly retained to represent him at the hearing. The objection was that such a revelation from such a source violated the attorney-client privilege.

Before the completion of the hearing, but after giving the above testimony, the witness former counsel informed the Court that upon a conference with the various atttorneys in the case he was convinced that his testimony did violate the privilege. The District Court, however, announced that he was acting on the command of the mandate from this Court that it be ascertained if Woodall learned of the maximum penalties from his lawyer, his bondsman, or some other source. Therefore, he let the record stand and found that Woodall had been advised by counsel as to the penalties. Inherent in the remand, of course, was the requirement that the question be settled on evidence properly admissible.

The threshold issue, then, is whether the admission of this testimony was erroneous.

On the question of privileged communications, the federal courts follow the law of the state of the forum, Baird v. Koerner, 9 Cir., 1960, 279 F.2d 623, 628.

Alabama has a statute on the subject, Alabama Code, Title 7, Section 438, which provides that:

"No attorney or his clerk shall be competent or compelled to testify in any court in this state, for or against the client, as to any matter or thing knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney, unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing knowledge of which may have been acquired in any other manner."

In Cooper v. Mann, 1962, 273 Ala. 620, 143 So.2d 637, the Supreme Court of Alabama, interpreted this statute as follows:

"It is generally held, in absence of statute, that communications between attorney and client emphasis ours are privileged and neither attorney nor client can be compelled to testify as to the contents of such communications emphasis ours. Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548; 58 Am.Jur., Witnesses, Sec. 460.

"The term `communication\' imports not only words uttered, but information conveyed by any other means. Therefore, sight is just as privileged as hearing, and privilege applies to all knowledge acquired in either instance, where acquisition is due to the attorney-client relation. 58 Am.Jur., Witnesses, Sec. 486. Acts as well as words fall within the privileged. Ex parte McDonough, 170 Cal. 230, 149 P. 566, L.R.A.1916C, 593.

"Our statute fully recognizes the foregoing principles." 143 So.2d 638, 639.

Had we been writing as a matter of first impression we might have thought that the federal statutes are matters of public knowledge and could not be the subject of privilege. It is apparent, however, that what the Alabama statute prohibits is the revelation of communications between attorney and client. If there is no fraud, or complicity in a proposed violation of the law, or breach of a duty to the Court, the content of the communication is immaterial. If there is a communication it is privileged. The Supreme Court of Alabama categorically stated that neither attorney nor client can be compelled to testify as to the contents of such communications. We are compelled, therefore, to hold that the testimony of former counsel should not have been admitted over the objection of his erstwhile client.

This leaves the record again devoid of any proof that Woodall was ever informed from any source of the maximum penalties which might flow from the entry of the pleas of guilty.

The mandate of the prior panel of this Court was that if "it should be found that he did not, the trial court will set aside his convictions and grant him a new trial." It would thus appear that nothing remains to be done on this appeal but to reverse the most recent judgment of the District Court and remand with directions and the appellant be allowed to plead over.²

Reversed and remanded, with directions that the appellant, John David Woodall, be allowed to plead over to the indictments in these cases.

Reversed and remanded, with directions.

ON PETITION FOR REHEARING

The opinion of the Court in this case dated May 18, 1970, contained the following language:

"On the question of privileged communications, the federal courts follow the law of the state of the forum, Baird v. Koerner, 9 Cir., 1960, 279 F.2d 623, 628."

In its petition for rehearing en banc the Government asserts that in criminal prosecutions in the federal courts this question is not governed by state law but by Rule 26, Federal Rules of Criminal Procedure. That rule is as follows:

"In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."

We observe first that the Government in its original and supplemental brief (when we decided the case) made no mention of Rule 26. It argued that under Alabama law the question of whether counsel advised his client of the maximum penalties for the criminal offenses involved was not privileged. We rejected that argument. Rule 26 is mentioned for the first time in the petition for rehearing.

Under both the state statute and Rule 26 the outcome is the same.

We quote from Baird v. Koerner, supra:

"Confidential communications between client and attorney were privileged under common law. The privilege is of ancient origin. Prichard v. United States, 6 Cir., 1950, 181 F.2d 326, affirmed, 339 U.S. 974, 70 S.Ct. 1029, 94 L.Ed. 1380. The doctrine is subject to statutory regulation and limitation, but except as so modified the statutes are merely declaratory of the common law rule. 97 C.J.S. Witnesses § 276. The doctrine is based on public policy. While it is the great purpose of law to ascertain the truth, there is the countervailing necessity of insuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. This assistance can be made safely and readily available only when the client is free from the consequences of apprehension of disclosure by reason of the subsequent statements of the skilled lawyer."

In a Dyer Act prosecution in 1967, Love v. United States, 386 F.2d 260, the Eighth Circuit wrote, "This court is bound by the law of the forum state on the question of privileged communications", citing Baird v. Koerner, supra, ...