|||U.S. Court of Appeals, Tenth Circuit
|||144 F.3d 653, 1998.C10.560 <http://www.versuslaw.com>
|||May 18, 1998
|||IN RE: GRAND JURY SUBPOENAS, JANE ROE AND JOHN DOE. INTERVENOR, APPELLANT,
UNITED STATES OF AMERICA, APPELLEE.
|||James R. Wyrsch (Jacqueline A. Cook, with him on the briefs), Wyrsch Hobbs
Mirakian & Lee, P.C., Kansas City, Missouri, for Appellant. Tanya J.
Treadway, Assistant United States Attorney (Jackie N. Williams, United States
Attorney, with her on the brief), Kansas City, Kansas, for Appellee.
|||Before Anderson and Kelly, Circuit Judges, and Brett, *fn1 District Judge.
|||The opinion of the court was delivered by: Anderson, Circuit Judge.
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
|||(D.C. NO. 97-CV-2181)
appeals from the district court's order compelling the testimony of two
attorneys, John Doe and Jane Roe, before a federal grand jury. He argues
that the district court erred by: (1) applying the crime-fraud exception
to attorney-client privilege to compel the attorneys' testimony; (2) applying
the exception too broadly and refusing to review the questions to be asked
of the attorneys before the grand jury; (3) refusing to disclose or to allow
rebuttal of the government's in camera, ex parte showing that the crime-fraud
exception applied; and (4) prohibiting the attorneys from invoking Intervenor's
Fifth Amendment right against self-incrimination. The government challenges
Intervenor's standing to bring the present appeal. We affirm.
|||Intervenor, several hospitals, doctors, and others are targets of an ongoing
federal grand jury investigation. The Hospital, which employed Intervenor
as President and Chief Executive Officer during the relevant time periods,
responded to the grand jury's subpoenas duces tecum by producing numerous
documents, some of which implicated the use of attorneys John Doe and Jane
Roe to effectuate the crimes. Doe and Roe provided legal services to The
Hospital during the time of the alleged criminal activity. The Hospital
and Intervenor also sought the advice of other attorneys after the FBI initiated
its investigation in 1992.
|||The grand jury issued subpoenas seeking the testimony of Doe and Roe before
it on January 21, 1997. The Hospital, Doe, and Roe moved, on January 16,
1997, to quash the subpoenas because of the attorney-client privilege and
the work-product doctrine (referred to hereinafter as "privileges"
for convenience) and because the testimony would violate The Hospital's
Sixth Amendment right to counsel. That same day, Intervenor moved to intervene
and to quash the subpoenas, asserting the privileges on the basis of his
relationship with the attorneys in his individual capacity, independent
of the attorneys' relationship with The Hospital and its officers in their
official capacities. On January 30, 1997, the government filed a response
to the motions, arguing, inter alia, that the parties had failed to prove
entitlement to the privileges, that The Hospital's production of documents
waived the privileges, and that the crime-fraud exception vitiates the privileges.
In support of its position, the government simultaneously filed an in camera,
ex parte good faith statement of evidence as to the alleged criminal activity,
which Doe, Roe, The Hospital, and Intervenor have not been permitted to
|||The district court conducted a hearing on the motions on February 24,
1997. The court granted Intervenor's motion to intervene, but found that
the crime-fraud exception to the attorney-client privilege applied because
the government had established a prima facie case that The Hospital had
engaged in criminal or fraudulent conduct, which was furthered by the aid
of Roe and Doe. The court accordingly denied the motions to quash, subject
to further development of the record, including specific questions and answers
before the grand jury. The court refused to permit movants to view the government's
good faith statement of evidence or to conduct a separate hearing at which
movants could attempt to rebut the evidence, although the court did allow
counsel for Intervenor to present arguments intended to rebut the prima
|||On March 19, 1997, Ms. Roe appeared before the grand jury and asserted
the attorney-client privilege and the work-product doctrine in response
to virtually every question asked of her. She also vicariously raised Intervenor's
Fifth Amendment right against self-incrimination at his request. Mr. Doe
appeared before the grand jury on April 2, 1997, and did the same. On March
25, 1997, the government moved to compel Ms. Roe's testimony, and it orally
moved to compel Mr. Doe's testimony on April 2, 1997. Mr. Doe and Ms. Roe
responded to the motion to compel, and The Hospital and Intervenor moved
|||The court conducted hearings on the motions on April 2 and 7, 1997, during
which the court heard the testimony of Mr. Doe, Ms. Roe, and Intervenor
regarding any attorney-client relationship between the attorneys and Intervenor
in his individual capacity. The court granted both motions to intervene
because "for purposes of the motion to intervene, . . . the attorney-client
privilege has been sufficiently established, and the Court would find that
at relevant times [Ms. Roe and Mr. Doe] were providing joint representation
to [The Hospital and to Intervenor]." Appellee's Supplemental App.
|||At the April 7, 1997, hearing, the government presented further in camera,
ex parte evidence of the involvement of Ms. Roe and Mr. Doe in the criminal
activity. The district court found that the crime-fraud exception applied,
and the court orally sustained the government's motion to compel the testimony
of Ms. Roe and Mr. Doe. The Hospital and Intervenor indicated their intent
to file an appeal and moved to stay the proceedings pending the appeal.
Subsequently, on May 1, 1997, the court entered its written order (1) sustaining
the motion to compel testimony of Ms. Roe and Mr. Doe; (2) overruling Intervenor's
request that Ms. Roe and Mr. Doe be allowed to assert Intervenor's Fifth
Amendment right against self-incrimination; and (3) granting the motion
to stay pending appeal. Intervenor appeals the first two decisions. *fn3
|||In general, the granting of a motion to compel testimony is interlocutory
in nature and is not an appealable order. In re Grand Jury Proceedings (Company
X), 857 F.2d 710, 711 (10th Cir. 1988). The present case, however, comes
within an exception to that general rule as announced in Perlman v. United
States, 247 U.S. 7 (1918). Because Doe and Roe have indicated their intent
to comply with the order rather than risk contempt, the order is appealable
and we have jurisdiction pursuant to 28 U.S.C. § 1291. See In re Grand Jury
Proceedings (Company X), 857 F.2d at 711-12; In re Grand Jury Proceedings
(Vargas), 723 F.2d 1461, 1466 (10th Cir. 1983); see also United States v.
Nixon, 418 U.S. 683, 690-91 (1974); In re Grand Jury Subpoenas Dated December
7 and 8, 40 F.3d 1096, 1099 (10th Cir. 1994).
|||I. Attorney-Client Privilege and Standing
|||The government argues that Intervenor lacks standing to bring this appeal
because he was never a client of Doe or Roe in his individual capacity,
and, therefore, he cannot assert the attorney-client privilege. When the
district court granted Intervenor's motion to intervene, it found that the
attorney-client privilege existed for the limited purposes of moving to
quash the testimony of Roe and Doe and of objecting to the government's
motion to compel the testimony. See Appellee's Supplemental App. at 288,
305. At the time of the court's decision, The Hospital was still involved
in the case and was asserting the attorney-client privilege in an attempt
to prevent Roe and Doe from testifying before the grand jury. Subsequently,
The Hospital and the government reached a settlement agreement, and The
Hospital no longer asserts the attorney-client privilege for itself or its
officers so as to prevent the grand jury testimony of Doe and Roe. Intervenor,
therefore, must prove the existence of an attorney-client privilege for
himself in his individual capacity.
|||We review the issue of standing de novo. See Committee to Save the Rio
Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996). We review the factual
findings underlying the court's attorney-client privilege ruling for clear
error and purely legal questions de novo. See Frontier Refining Inc. v.
Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998).
|||"The doctrine of standing `is an essential and unchanging part of
the case-or-controversy requirement of Article III.'" Lucero, 102 F.3d
at 447 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
To satisfy the standing requirement, "a party must establish three
elements: (1) injury in fact, (2) a causal relationship between the injury
and the challenged conduct, and (3) likelihood that the injury will be redressed
by a favorable decision." Wilson v. Glenwood Intermountain Properties,
Inc., 98 F.3d 590, 593 (10th Cir. 1996). In the present case, Intervenor's
ability to satisfy the elements required for standing is inextricably tied
to his ability to claim the attorney- client privilege. If the attorney-client
privilege does exist between Intervenor in his individual capacity and Attorneys
Roe and Doe, then Intervenor has standing. See Henderson v. United States,
815 F.2d 1189, 1192 (8th Cir. 1987); Young v. Taylor, 466 F.2d 1329, 1333
(10th Cir. 1972).
|||The party seeking to assert the attorney-client privilege has the burden
of establishing its applicability. Motley v. Marathon Oil Co., 71 F.3d 1547,
1550 (10th Cir. 1995). The privilege is governed by the common law and is
to be strictly construed. Trammel v. United States, 445 U.S. 40, 47, 50
(1980); In re Grand Jury Proceedings of John Doe v. United States, 842 F.2d
244, 245-46 (10th Cir. 1988). "The purpose behind the attorney-client
privilege is to preserve confidential communications between attorney and
client." In re Grand Jury Subpoenas (United States v. Anderson), 906
F.2d 1485, 1492 (10th Cir. 1990). Where a corporate client is involved,
"special problems" arise because, "[a]s an inanimate entity,
a corporation must act through agents." Commodity Futures Trading Comm'n
v. Weintraub, 471 U.S. 343, 348 (1985). Any privilege resulting from communications
between corporate officers and corporate attorneys concerning matters within
the scope of the corporation's affairs and the officer's duties belongs
to the corporation and not to the officer. See United States v. International
Bhd. of Teamsters, 119 F.3d 210, 215 (2d Cir. 1997); In re Bevill, Bresler
& Schulman Asset Management Corp., 805 F.2d 120, 124 (3d Cir. 1986);
see also Weintraub, 471 U.S. at 348-49; Upjohn Co. v. United States, 449
U.S. 383, 394-95 (1981). Thus, Intervenor has no power to assert the attorney-client
privilege except as to confidential communications with Doe and Roe in his
individual capacity, which is unlikely to be anything more than a minute
portion of the total communications sought by the grand jury.
|||The Second and Third Circuits have employed the following test to determine
whether an officer may assert a personal privilege with respect to conversations
with corporate counsel despite the fact that the privilege generally belongs
to the corporation:
|||First, they must show they approached [counsel] for the purpose of seeking
legal advice. Second, they must demonstrate that when they approached [counsel]
they made it clear that they were seeking legal advice in their individual
rather than in their representative capacities. Third, they must demonstrate
that the [counsel] saw fit to communicate with them in their individual
capacities, knowing that a possible conflict could arise. Fourth, they must
prove that their conversations with [counsel] were confidential. And, fifth,
they must show that the substance of their conversations with [counsel]
did not concern matters within the company or the general affairs of the
|||International Bhd. of Teamsters, 119 F.3d at 215 (quoting In re Bevill,
805 F.2d at 123 (quoting In re Grand Jury Investigation, 575 F. Supp. 777,
780 (N.D. Ga. 1983))). A personal privilege does not exist merely because
the officer "reasonably believed" that he was being represented
by corporate counsel on an individual basis. International Bhd. of Teamsters,
119 F.3d at 216. In certain circumstances, reasonable belief may be enough
to create an attorney-client relationship, but it is not sufficient here
to create a personal attorney-client privilege. See Cole v. Ruidoso Mun.
Sch., 43 F.3d 1373, 1384 (10th Cir. 1994) (holding, in context of motion
to disqualify counsel, attorney-client relationship exists where party submits
confidential information to a lawyer and it does so with a reasonable belief
that the lawyer was acting as its attorney).
|||The district court heard the testimony of Intervenor, Ms. Roe, and Mr.
Doe concerning the existence of a personal attorney-client privilege. Each
of them testified that Intervenor sought the advice of the attorneys in
his individual capacity and that confidential communications occurred between
them as to his personal situation. Doe and Roe testified that they recognized
a potential conflict of interest. The court concluded that "for purposes
of the motion to intervene, . . . the attorney-client privilege has been
sufficiently established, and the Court would find that at relevant times
[Ms. Roe and Mr. Doe] were providing joint representation to [The Hospital
and to Intervenor]." Appellee's Supplemental App. at 305. In making
this finding, the district court necessarily relied on the credibility of
the witnesses before it and on facts which have not been demonstrated to
us to be clearly erroneous.
|||Accordingly, adopting and applying the test employed by the Second and
Third Circuits, we conclude that a limited attorney-client privilege exists
between Intervenor and Roe and Doe. Our holding is an extremely limited
one and does not extend to communications made while third parties were
present nor does it extend to communications in which both corporate and
individual liability were discussed. It includes only that very small portion
of communications in which Intervenor sought legal advice as to his personal
liability without regard to any corporate considerations. To the limited
extent there is a privilege then, Intervenor has standing.
|||II. Application of Crime-Fraud Exception
|||Next, we address, whether, in light of the limited attorney-client privilege,
that privilege is vitiated by the crime-fraud exception. We review the district
court's granting of the motion to compel and its determination that the
crime-fraud exception applies for abuse of discretion. In re Grand Jury
Proceedings (Company X), 857 F.2d at 712. We will not disturb the court's
exercise of its discretion unless we have a "definite and firm conviction
that the lower court made a clear error of judgment or exceeded the bounds
of permissible choice in the circumstances." Moothart v. Bell, 21 F.3d
1499, 1504 (10th Cir. 1994) (quotation omitted).
|||The importance and sanctity of the attorney-client privilege is well established.
See Upjohn v. United States, 449 U.S. 383, 389 (1981). Yet, the privilege
is not worthy of protection "at all costs" as Intervenor suggests.
Appellant's Br. at 49. Because it "`withhold[s] relevant information
from the factfinder,'" United States v. Zolin, 491 U.S. 554, 562 (1989)
(citation omitted), the "`attorney- client privilege does not apply
where the client consults an attorney to further a crime or fraud.'"
Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995) (quoting
In re Grand Jury Proceedings (Company X), 857 F.2d 710, 712 (10th Cir. 1988)).
"It is the purpose of the crime-fraud exception to the attorney-client
privilege to assure that the `seal of secrecy,' between lawyer and client
does not extend to communications `made for the purpose of getting advice
for the commission of a fraud' or crime." Zolin, 491 U.S. at 563 (citations
omitted). The crime-fraud exception applies to both the attorney-client
privilege and the work-product doctrine. In re Grand Jury Proceedings (Vargas),
723 F.2d 1461, 1467 (10th Cir. 1983).
|||To invoke the crime-fraud exception, the party opposing the privilege
must present prima facie evidence that the allegation of attorney participation
in the crime or fraud has some foundation in fact. Motley, 71 F.3d at 1551;
In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467. The evidence must
show that the client was engaged in or was planning the criminal or fraudulent
conduct when it sought the assistance of counsel and that the assistance
was obtained in furtherance of the conduct or was closely related to it.
See In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th
Cir. 1987). The exception does not apply if the assistance is sought only
to disclose past wrongdoing, see Zolin, 491 U.S. at 562, but it does apply
if the assistance was used to cover up and perpetuate the crime or fraud.
See In re Grand Jury Proceedings (Company X), 857 F.2d at 712; see also
In re Grand Jury Proceedings (Doe), 102 F.3d 748, 749-51 (4th Cir. 1996)
(applying exception where client used lawyers, without their knowledge,
to misrepresent or to conceal what the client had already done); In re Richard
Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995) (noting that exception applies
where "communication with counsel or attorney work product was intended
in some way to facilitate or to conceal the criminal activity"); In
re Sealed Case, 754 F.2d 395, 402 (D.C. Cir. 1985) ("To the limited
extent that past acts of misconduct were the subject of the cover-up that
occurred during the period of representation, however, then past violations
properly may be a subject of grand jury inquiry.").
|||Although the exact quantum of proof necessary to meet the prima facie
standard has not been decided by the Supreme Court, see Zolin, 491 U.S.
at 563-64 & n.7, several circuits have attempted to define precisely
what the standard requires. See, e.g., In re Richard Roe, Inc., 68 F.3d
38, 40 (2d Cir. 1995) (probable cause to believe a crime or fraud has been
committed); Haines v. Liggett Group Inc., 975 F.2d 81, 95-96 (3d Cir. 1992)
(evidence that if believed by the fact finder would be sufficient to support
a finding that the elements of the crime-fraud exception were met); In re
International Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1242
(5th Cir. 1982) (evidence such as will suffice until contradicted and overcome
by other evidence); United States v. Davis, 1 F.3d 606, 609 (7th Cir. 1993)
(evidence presented by the party seeking application of the exception is
sufficient to require the party asserting the privilege to come forward
with its own evidence to support the privilege); In re Grand Jury Proceedings
(Corporation), 87 F.3d 377, 381 (9th Cir. 1996) (reasonable cause to believe
attorney was used in furtherance of ongoing scheme); In re Grand Jury Investigation
(Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987) (evidence that if believed
by the trier of fact would establish the elements of some violation that
was ongoing or about to be committed); In re Sealed Case, 107 F.3d 46, 50
(D.C. Cir. 1997) (evidence that if believed by the trier of fact would establish
the elements of an ongoing or imminent crime or fraud). We need not articulate
the exact quantum of proof here because under any of these announced standards,
the government has made a prima facie showing.
|||The court below found that the government had "established by substantial
and competent evidence a prima facie case that [The Hospital and Intervenor]
have committed a crime, that [The Hospital and Intervenor] used the legal
services of Roe and Doe in furtherance of that crime, and that Roe and Doe
were aware of the criminal conduct." Appellant's App. Vol. II at 226.
We have reviewed the record, including the government's ex parte, in camera
submission, and conclude that the district court did not abuse its discretion.
The evidence presented constitutes a prima facie showing that the services
of Mr. Doe and Ms. Roe were used both to effectuate the crime or fraud and
to conceal it. Thus, the crime-fraud exception vitiates the limited attorney-client
privilege between Intervenor and Roe and Doe. *fn4
|||III. Scope of the Crime-Fraud Exception
|||Intervenor asserts that even if the exception does apply, the district
court's application of the exception lacked specificity and was overly broad.
The court held that because the exception applies, Roe and Doe could not
"avoid testifying as to any act, communication, document or other matter
concerning the relationships and agreements (whether formal or informal,
written or unwritten, executed or proposed) between [The Hospital and the
doctors, two of their companies, its officers or employees] during the time
period September 1, 1984 through 1994." Appellant's App. Vol. II at
|||Intervenor argues that the time period defined by the court is arbitrary
and covers too great a period and that, as a result, it may include communications
that do not fall within the crime-fraud exception. Given our review of the
record, we disagree. The court properly delineated a reasonable time period
and further narrowed the focus to questions regarding the relationship at
issue. Accordingly, we conclude that the court did not err in defining the
scope of the crime- fraud exception.
|||Similarly, Intervenor contends that the district court's decision to apply
the crime-fraud exception was error because it refused to review, in camera,
the government's proposed questions to Doe and Roe. Without such a review,
he argues, the court could not have properly determined whether some of
the questions-and their answers-would fall outside the scope of the exception.
|||In In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467, we held that
"once the trial Judge has concluded that the privilege does not apply
because the government has made such a prima facie showing, the trial court
need only conduct an in camera inspection of the documents if there is a
possibility that some of them may fall outside the scope of the exception
to the privilege." We have not addressed whether it is appropriate
for a similar "inspection" to be made of testimony to be presented
to a grand jury.
|||We recognize the need to balance the confidentiality of privileged information
outside the scope of the crime-fraud exception and the conservation of judicial
resources. We have encouraged the district courts not to allow the determination
of the applicability of the crime- fraud exception to turn into mini-trials
that would waste resources and delay the grand jury proceedings. See In
re Grand Jury Proceedings (Company X), 857 F.2d at 712; In re Grand Jury
Proceedings (Vargas), 723 F.2d at 1467. Accordingly, we will not require
that the district court conduct a detailed review of all questions and answers
prior to their presentation to the grand jury. Instead, district courts
should define the scope of the crime-fraud exception narrowly enough so
that information outside of the exception will not be elicited before the
grand jury. However, if, before ordering testimony in front of the grand
jury, the district court, within its discretion, believes an in camera examination
of the witness or the questions to be asked of the witness is needed to
ensure the scope of the inquiry will not be too broad, it may do so. *fn5
See In re Richard Roe, Inc., 68 F.3d at 41.
|||At the April 7, 1997, hearing in this case, the court did hear objections
to specific questions that had been asked before the grand jury previously.
The court concluded that not only did they fall within the scope of the
crime-fraud exception, but also that much of the information sought did
not even relate to anything that could be considered privileged. Appellee's
Supplemental App. at 309-29. In addition, the court's order makes it clear
that it had, in fact, reviewed the questions already asked of Roe and Doe.
Appellant's App. Vol. II at 226.
|||Given the court's review of the questions and its limited definition of
the scope of the crime-fraud exception, we do not believe it abused its
discretion in failing to set forth, question by question, what could and
could not be asked of Doe and Roe. The court's order appropriately requires
Roe and Doe "to answer the questions previously posed [before the grand
jury], as well as any other questions on those topics." Appellant's
App. Vol. II at 227.
|||IV. Rebuttal to Government's Prima Facie Showing
|||Intervenor next alleges that the district court erred because it believed
it had no discretion (1) to disclose to Intervenor the government's ex parte,
in camera submission, and (2) to hear rebuttal evidence from Intervenor
as to the government's prima facie showing of the crime-fraud exception.
|||In In re Grand Jury Proceedings (Vargas), 723 F.2d 1461 (10th Cir. 1983),
we faced Intervenor's present argument, minus the allegation of the district
court's misperception of its authority. We stated as follows:
|||Petitioner . . . argues that certain procedures must be followed, including
an opportunity for the attorney and client to rebut the prima facie evidence
and to be present at any hearing which is intended to establish such a prima
facie foundation. Petitioner misconstrues the law in this circuit. As this
court held in its opinion In re September 1975 Grand Jury Term, 532 F.2d
734 (10th Cir. 1976), "[t]he determination of whether the government
shows a prima facie foundation in fact for the charge which results in the
subpoena lies in the sound discretion of the trial court." Id. at 737.
In particular, that determination can be made ex-parte and a "preliminary
minitrial" is not necessary. Id. at 737-38. Furthermore, the prima
facie foundation may be made by documentary evidence or good faith statements
by the prosecutor as to testimony already received by the grand jury.
|||In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467 (emphasis added)
(citations to the record omitted). Such expedited procedures do not violate
due process. See In re Grand Jury Proceedings, Thursday Special Grand Jury,
33 F.3d 342, 352-53 (4th Cir. 1994); In re John Doe, Inc., 13 F.3d 633,
637 (2d Cir. 1994).
|||This framework is grounded in the importance of a properly functioning
grand jury. As the Supreme Court has stated, "[a]ny holding that would
saddle a grand jury with minitrials and preliminary showings would assuredly
impede its investigation and frustrate the public's interest in the fair
and expeditious administration of the criminal laws." United States
v. Dionisio, 410 U.S. 1, 17 (1973); see also In re September 1975 Grand
Jury Term, 532 F.2d at 737. Moreover, the reasons for keeping a tight lid
on in camera documents containing grand jury testimony and on evidence gathered
during criminal investigations are legion and obvious. See, e.g., In re
Grand Jury 95-1, 118 F.3d 1433, 1439 (10th Cir. 1997).
|||Accordingly, the district court has the discretionary authority to do
as Intervenor requests, and we believe the court understood that authority.
Intervenor points to the February 24, 1997, hearing to show that the court
did not understand it had discretionary authority. There, the district court
queried, "if I let you see the contents of [the government's] showing,
[aren't you] just setting this up to get me involved in having the sort
of mini trial on the criminal allegations that the courts have said I shouldn't
be involved in?" Appellant's App. Vol. II at 240. Unfortunately for
Intervenor, the court's question implies that it understood it had authority,
pursuant to the familiar Fed. R. Crim. P. 6(e), to make the submission available
to Intervenor. Our review of the record also indicates that the court understood
it had the authority to hear rebuttal evidence.
|||The district court did not abuse its discretion in refusing to allow Intervenor
to review the contents of the government's ex parte, in camera submission
and in refusing to hear rebuttal evidence. The court reviewed the many briefs
that had been filed and actually entertained some of counsel's arguments
intended to rebut the government's prima facie showing. See, e.g., Appellant's
App. Vol. II at 241-51. After reviewing the briefs, hearings, and the government's
submission, we find no abuse in either the district court's refusal to conduct
a separate rebuttal hearing or its refusal to reveal the contents of the
|||V. Vicarious Assertion of Intervenor's Fifth Amendment Rights
|||Finally, Intervenor claims that Roe and Doe should be allowed to assert
his Fifth Amendment right against self-incrimination. We review the district
court's denial of this claim de novo because it involves a question of standing.
See United States v. Anderson, 778 F.2d 602, 606 n.3 (10th Cir. 1985); United
States v. Skolek, 474 F.2d 582, 584 (10th Cir. 1973); see also Committee
to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996).
|||"There is no constitutional right not to be incriminated by the testimony
of another. . . . The privilege against self-incrimination is solely for
the benefit of the witness and is purely a personal privilege of the witness,
not for the protection of other parties." Skolek, 474 F.2d at 584.
The Fifth Amendment protects against "`compelled self- incrimination,
not (the disclosure of) private information.'" Fisher v. United States,
425 U.S. 391, 401 (1976) (quoting United States v. Nobles, 422 U.S. 225,
233 n.7 (1975)). Thus, a "`party is privileged from producing evidence
but not from its production.'" Fisher, 425 U.S. at 399 (quoting Johnson
v. United States, 228 U.S. 457, 458 (1913)). The relevant question for our
analysis, then, is whether the information was obtained through compulsion,
not whether the information was private.
|||In certain circumstances, where an attorney is being compelled to produce
documents that his or her client could personally bar from production under
the Fifth Amendment, "the attorney to whom they are delivered for the
purpose of obtaining legal advice should also be immune from subpoena."
Fisher, 425 U.S. at 396. However, the instant case is different because
the information sought is the content of oral statements made by Intervenor
that were not compelled. In re Feldberg, 862 F.2d 622, 629 (7th Cir. 1988);
In re Grand Jury Proceedings (Wilson), 760 F.2d 26, 27 (1st Cir. 1985).
Compulsion of the attorneys' testimony as to voluntary statements made by
the client does not, therefore, implicate the Fifth Amendment's protection
of the client against "compulsory self-incrimination." Feldberg,
862 F.2d at 629. The statements might be protected by the attorney-client
privilege, but not where, as here, the crime-fraud exception applies.
|||Thus, because there is no indication that Intervenor's statements to his
attorney were compelled and because the crime-fraud exception vitiates any
attorney-client privilege, the district court correctly ordered that Ms.
Roe and Mr. Doe could not vicariously assert Intervenor's Fifth Amendment
rights before the grand jury.
|||For the foregoing reasons, we AFFIRM the district court.
|||1 The Honorable Thomas R. Brett, Senior U.S. District Judge, United States
District Court of the Northern District of Oklahoma, sitting by designation.
Because Appellant is the subject of a grand jury investigation, he is referred
to herein as "Intervenor" pursuant to Fed. R. Crim. P. 6(e). Likewise,
the hospital for which he worked will be referred to as "The Hospital."
The two attorneys involved will be referred to as "John Doe" and
Mr. Doe and Ms. Roe did not appeal the decision. The Hospital appealed,
but, upon its motion, the appeal was dismissed. Pursuant to a settlement
agreement with the government, The Hospital agreed to waive its prior assertion
of the attorney-client privilege and the work-product doctrine as to any
document or information concerning contracts between it and the doctors
from September 1, 1984, to February 1, 1995. See Appellee's Supplemental
App. at 331-32.
We by no means imply that Doe and Roe are guilty of any crimes or that they
were, in fact, culpable in any way. Indeed, no charges have been filed against
We recognize that in one case, the D.C. Circuit required the district court
to engage in a question-by-question determination of the scope of the crime-fraud
exception "given the nebulous distinction in this case between prior
acts that remain protected by the attorney-client privilege and prior acts
forming the basis of the ongoing cover-up." In re Sealed Case, 754
F.2d 395, 402-03 (D.C. Cir. 1985). We believe, as the Second Circuit did
in In re Richard Roe, Inc., 68 F.3d at 41, that the narrow scope of the
district court's order makes such a mandatory review unnecessary.
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