US v. Robinson

Decision Date29 August 1997
Docket NumberNo. 96-11359.,96-11359.
Citation121 F.3d 971
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Clarence ROBINSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Delonia Anita Watson, Joe C. Lockhart, Dallas, TX, for Plaintiff-Appellee.

Helen Miller Liggett, Assistant Federal Public Defender, Lubbock, TX, for Defendant-Appellant.

Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue in this appeal from a perjury conviction is whether the lawyer-client privilege covers: (1) a forfeiture notice received by Clarence Robinson and handed by him to a lawyer representing Robinson in another proceeding; and (2) that transfer of the notice, as well as Robinson's communications with that, and another, lawyer, both of whom declined to represent Robinson in the forfeiture proceedings. The district court rejected the claimed privilege and admitted the evidence. We AFFIRM.

I.

When Robinson was arrested by DEA agents for drug-related offenses in early January 1994, approximately $3500 was seized. Several weeks later, on 14 February, the DEA sent Robinson a notification of forfeiture (the notice) at the Lubbock County Jail, where he was incarcerated. Robinson was then represented in the criminal proceeding by appointed counsel, Mike Thomas.

In late February, Thomas visited Robinson at the jail to discuss that representation. The conference took place in a secure meeting room so that prisoners could meet in secrecy with their lawyers. During the meeting, Robinson handed the notice to Thomas, asking Thomas if he would represent him (Robinson) in the forfeiture proceeding.

Thomas responded that he had been appointed to represent Robinson only with respect to the criminal proceeding. Robinson then asked Thomas to forward the notice to Ruth Cantrell, a lawyer who had previously represented Robinson.

Thomas left the jail with the notice in hand. He promptly made a copy of the notice and mailed it to Cantrell, together with a letter explaining his conversation with Robinson; made a copy of the notice for his (Thomas') file; and returned the original notice to Robinson, along with a copy of his letter to Cantrell. Thomas included a letter of his own to Robinson.

Thomas kept copies of the documents in his file. His representation of Robinson in the criminal matter ended in May 1994, when new counsel was appointed for Robinson's appeal.

By letter to Robinson in March 1994 referencing "seizure", Cantrell stated that she did not feel qualified to represent Robinson. She also sent him copies of the materials Thomas had provided her.

In March 1995, Robinson sought, pro se, the return of the money forfeited in accordance with the 1994 notice. His position in district court was that he did not know of the forfeiture proceeding: "If it was done, it was without any notice being sent to this plaintiff". The district court denied relief.

Robinson appealed, stating in his pro se brief that he had never received a notice of forfeiture, or seen the notice which the DEA published in "USA Today", or had actual notice. Our court remanded the case for a hearing on whether the DEA had properly notified Robinson of the forfeiture.

On remand, Robinson testified in June 1996 as follows:

Well, your honor, I never did receive forfeiture papers while I was locked up in jail. And I never did notice that they was taking anything, my money or anything like that, because I wasn't told they was taking my money. I wasn't given a receipt for my money, and my money was not drug related money.
The court: All right, sir. So it is your position that you did not receive actual notice from the government that they were going to seek forfeiture of this money; is that right?
Robinson: No, sir.
The court: Okay. When you said "no, sir", you are agreeing with my statement?
Robinson: Yes, sir.
The court: Okay. And you were in the county jail here in Lubbock; is that right; at the time these proceedings took place?
Robinson: Yes, sir.

The next day, an Assistant United States Attorney, who had previously contacted Thomas about the matter, told Thomas about Robinson's testimony that he had never received the notice. Thomas responded that he might have documents in his file pertaining to the truthfulness of that testimony.

Shortly thereafter, a grand jury subpoena issued for any such documents. Thomas produced them for the grand jury. The produced documents, to include those subpoenaed from, and produced by, Cantrell, were: the copies of the notice given by Robinson to Thomas and sent to Cantrell, and the letters those lawyers sent each other and Robinson concerning the forfeiture.

Robinson was indicted for perjury. After a pre-trial suppression hearing, in which he asserted the lawyer-client privilege as to Thomas and Cantrell, the trial court ruled from the bench that, based on the evidence presented,

this communication between Mr. Robinson and attorneys Thomas and Cantrell were communications that were not intended to remain confidential. In other words they were not made in confidence.
The document in question — that is, the notice of seizure — was a government document created and received from the Government by Mr. Robinson. He was seeking to give this document to these attorneys in an effort to have them represent him in the DEA seizure and forfeiture proceedings. For that reason I do not believe that the communications were cloaked with the attorney/client privilege.

Likewise, the order denying the suppression motion stated in part:

The Court finds that the communication in question between Defendant Robinson and attorneys Thomas and Cantrell was a communication not intended to remain confidential. The communication dealt with a document created by the Government and received by Mr. Robinson from the Government. The communication involved Mr. Robinson seeking legal counsel to contest the DEA seizure and forfeiture proceedings. Such communication was not made in confidence.

At the trial on the perjury charge, this objected-to evidence was admitted. Robinson was convicted of perjury.

II.

Robinson contends that the district court erred in not excluding the testimony of Thomas and Cantrell. Along this line, he concedes, of course, that the notice per se is not cloaked with the lawyer-client privilege. Instead, he asserts that his receipt of it is.

"Except as otherwise required by the Constitution of the United States" or other authority listed in Rule 501, the lawyer-client privilege "shall be governed 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". FED.R.EVID. 501. Accordingly, we review a district court's ruling on such a claim as "a question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents". United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994), called into doubt on other grounds by United States v. Crouch, 51 F.3d 480 (5th Cir.1995); Hodges, Grant & Kaufmann v. IRS, 768 F.2d 719, 721 (5th Cir.1985). As usual, factual findings are reviewed for clear error; conclusions of law, de novo. Neal, 27 F.3d at 1048.

The purpose of the privilege is to "encourage full and frank communication between lawyers and their clients and thereby promote broader public interests in the observance of law and administration of justice". United States v. (Under Seal), 748 F.2d 871, 873 (4th Cir.1984) (quoting Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981)), vacated as moot on other grounds by 757 F.2d 600 (4th Cir.1985). On the other hand, because the privilege "has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose". Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976); see also In re Grand Jury Proceedings (Jones), 517 F.2d 666, 671-72 (5th Cir. 1975) ("criminal liability" exception to general rule of non-confidentiality of identity of client "a limited and rarely available sanctuary" because it "runs counter to the dominant aims of the law").

The assertor of the lawyer-client privilege must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding. Neal, 27 F.3d at 1048; In re Grand Jury Proceedings, 517 F.2d at 670.

A.

The first question is whether the copy of the notice which Thomas retained is privileged in its own right, as distinguished from Robinson's contemporaneous communications to Thomas when Robinson handed over the notice. It goes without saying that documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer. "If the client is compellable to give up possession, then the attorney is". 8 Wigmore on Evidence § 2307 (McNaughton Rev.1961).

In the case of pre-existing documents, if they "could have been obtained by court process from the client when he was in possession, they may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice". Fisher, 425 U.S. at 403, 96 S.Ct. at 1577. This result is in accordance with the purposes of the privilege; a client will not be less likely to show his lawyer important documents, because those documents do not become more easily discoverable by their revelation to the lawyer. Id. at 403, 96 S.Ct. at 1577. In the case at hand, the notice was discoverable when in Robinson's hands. It did not become less so by its transfer to Thomas. Moreover, the notice was not only received by Robinson from a third party, it was government-generated. Furthermore, we find no exception to the general rule because the document produced by Thomas was a copy of the notice, the original having been...

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