Vol. 10, No. 34	Covering Cases Published in the Advance Sheets through August 25, 2003

Highlights of this Issue:

The United States of America Versus the Criminal Defense Attorney

• Three cases this week epitomize how the Government sometimes attempts to use the power of its office to gain an advantage over defense counsel. In the Grand Jury Subpoena case, Judge Kaplan of the S.D.N.Y. examined the “troublesome” question of whether and to what extent the attorney-client privilege extends to communications between and among a prospective defendant in a criminal case, her lawyers, and a public relations firm hired by the lawyers to aid in avoiding an indictment. Concluding that the role of lawyers “would be undermined seriously” if they were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants, he ruled that that the attorney-client privilege protected the conversations in question. However, he also gave the Government an additional chance to show, ex parte, its “substantial need” to review the documents it had subpoenaed, which the defense argued were protected by the separate work product doctrine.
  
  
• Following his earlier ruling in Sattar in which he dismissed the principal terrorist charges against defense attorney Lynne Stewart, Judge Koeltl of the S.D.N.Y has now rejected a series of challenges to the remaining charges - thus effectively assuring that a trial on those charges will soon be held. Here he specifically rejected claims that the Government had failed to comply with the Foreign Intelligence Surveillance Act when secretly recording some 85,000 telephone calls, faxes and computer transmissions in its long investigation of this case.
  
  
• In Saccoccia, the First Circuit affirmed an order requiring one defense attorney to disgorge the “tainted” legal fees he had received; and, while it vacated a similar order in the case of two other attorneys on technical grtounds, it also remanded the case to give the Government the opportunity to pursue other remedies against those attorneys, including contempt proceedings and a state-law conversion charge.
  

The Ever-Expanding Scope of Child Pornography Prosecutions - Continued

• In Irving, Judge Kaplan of the S.D.N.Y. rejected a suppression motion filed by a defendant charged with child pornography, holding that the inspection of undeveloped film and the reading of computer disks fell within the scope of a “routine” border search; and that the interrogation of the defendant in a private room at the airport was not a “custodial interrogation.”
  
  
• The Ashley case from the Eight Circuit confirmed the incredibly broad sweep of some of the enhancements that govern child pornography crimes. Here, rejecting a challenge to a five-level enhancement for engaging in a “pattern of activity” involving sexual abuse or exploitation of minors, the Court emphasized that the Sentencing Commission itself specifically stated that it intended the “pattern” enhancement to be “broader than the scope of relevant conduct.”

Introduction of Fingerprint Evidence by Defendants Denied As Unduly Prejudicial

• In Sutton, the Seventh Circuit upheld the exclusion of fingerprint evidence that the defendants wanted to introduce because, even those reports were relevant, were self-authenticating, and fell within the public records exception to hearsay, they were not “substantively admissible” since their probative value was substantially outweighed by the danger of unfair prejudice to the Government’s case.

In Re Grand Jury Subpoenas Dated March 24, 2003, 265 F.Supp.2d 321 (S.D.N.Y. 2003) (Judge Kaplan)

In this decision, Judge Kaplan examined what he called “the troublesome question whether and to what extent the attorney-client privilege and the protection afforded to work product extend to communications between and among a prospective defendant in a criminal case, her lawyers, and a public relations firm hired by the lawyers to aid in avoiding an indictment.” (Id., at 322).

This case involved an unidentified but “high profile” person (the “Target”) who was the target of an ongoing grand jury investigation which, Judge Kaplan noted, had generated “intense press interest and extensive coverage for months.” Concerned about “unbalanced and often inaccurate press reports” about the ongoing investigation, the Target’s attorneys hired a public relations firm (the “PR Firm”) to assist in communicating with the media “in a way that would help restore balance and accuracy to the press coverage.” (Id., at 323). In that role, one of the PR Firm’s employees (the “Witness”) met with the Target and her attorneys on a number of occasions; and twice met with the Target alone.

For reasons that not even the Court could understand, the Government quickly served a grand jury subpoena ad testificandum on the Witness and a subpoena duces tecum on the PR Firm to compel them to disclose what they had learned about the case from the Target. While the Government swore that its motives in seeking the disclosures at issue were as pure as the driven snow, it had great difficulty explaining why it was seeking the evidence identified in its subpoenas. In fact, when pushed to explain some “substantial need” for the compelled testimony, the Government offered to explain its reasons ex parte and in private to the Court alone; but it insisted - without explaining - that disclosing those motives in open court would “let[ ] the cat out of the bag, so to speak.” (Id., at 334).

In any event, counsel for the PR Firm and the Witness and counsel for the Target objected to the subpoenas - and the Government’s motives - claiming that whatever information had been disclosed to the PR Firm and the Witness was part of the Target’s defense strategy and therefore was protected both by the attorney-client privilege and by the separate and distinct work product doctrine.

The Attorney-Client Privilege

From the outset, Judge Kaplan noted that the attorney-client privilege protects not only communications by the client to the lawyer, but also, in many circumstances, communications by the lawyers to the client. (Id., at 324). Further, he concluded, the privilege also extends, in appropriate circumstances, to communications “that involve persons assisting the lawyer in the rendition of legal services.” (Id., at 325). Applying those broad principles to the facts of this case, Judge Kaplan wrote:

“Target, like any investigatory target or criminal defendant, is confronted with the broad power of the government. Without suggesting any impropriety, the Court is well aware that the media, prosecutors, and law enforcement personnel in cases like this often engage in activities that color public opinion, certainly to the detriment of the subject's general reputation but also, in the most extreme cases, to the detriment of his or her ability to obtain a fair trial. Moreover, it would be unreasonable to suppose that no prosecutor ever is influenced by an assessment of public opinion in deciding whether to bring criminal charges, as opposed to declining prosecution or leaving matters to civil enforcement proceedings, or in deciding what particular offenses to charge, decisions often of great consequence in this Sentencing Guidelines era. Thus, in some circumstances, the advocacy of a client's case in the public forum will be important to the client's ability to achieve a fair and just result in pending or threatened litigation. . . .

“This Court is persuaded that the ability of lawyers to perform some of their most fundamental client functions - such as (a) advising the client of the legal risks of speaking publicly and of the likely legal impact of possible alternative expressions, (b) seeking to avoid or narrow charges brought against the client, and (c) zealously seeking acquittal or vindication - would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers' public relations consultants. . .

“In consequence, this Court holds that (1) confidential communications (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purpose of giving or receiving advice (5) directed at handling the client's legal problems are protected by the attorney-client privilege.” (Id., at 330-31).

Work Product Doctrine

Turning to the issues covered by the work product doctrine, Judge Kaplan noted that the PR Firm had withheld nineteen documents from production based on its contention that they were protected work product. He then explained that “‘the work product doctrine, now codified in part in Rule 26(b)(3) of the Federal Rules of Civil Procedure and Rule 16(b)(2) of the Federal Rules of Criminal Procedure, provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.’ Both ‘distinct from and broader than the attorney-client privilege,’ the work product doctrine ‘is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy “with an eye toward litigation,” free from unnecessary intrusion by his adversaries’." (Id., at 332) (Internal citations omitted).

Judge Kaplan then continued that there are two types of work product - each of which is afforded a different level of protection. “Work product consisting merely of materials prepared in anticipation of litigation or for trial is discoverable ‘only upon a showing that the party seeking discovery has substantial need of the materials . . . and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ Opinion work product - materials that would reveal the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation’ - is discoverable, if at all, only upon a significantly stronger showing.” (Id., at 333).

In the end, accepting the Government’s assurances that it was not seeking “opinion work product,” Judge Kaplan decided to call the Government’s bluff by allowing it to make an ex parte showing of both the substantial need for the documents in question and the necessity of preserving the confidentially of its submission to protect grand jury secrecy. But he warned that if he concluded that the disclosure of the Government’s submission would not compromise grand jury secrecy, he would disclose that submission to Target’s counsel who will then be permitted to respond on the issue of whether the Government had shown a substantial need for the documents in question.

U.S. v. Sutton, 337 F.3d 792 (7th Cir. 2003) (Judge Cudahy)

In a switch from its normal position, the Government strenuously objected to proposed introduction of fingerprint evidence by the defendants in this case; and the Government prevailed on that issue principally because the Seventh Circuit concluded that the probative value of the fingerprint reports at issue was outweighed by the danger of unfair prejudice to the Government’s case.

The three defendants were convicted of committing a series of robberies in Wisconsin, including a bank, an food store, and a Wendy’s restaurant, in violation of the Hobbs Act, 18 U.S.C. § 1951. The police collected fingerprints from some of those locations that witnesses had identified as having been touched by the robbers. However, an analysis by the police fingerprints laboratory concluded that the prints taken from the crime scenes did not match the defendant’s fingerprints.

Prior to trial, the Government moved to bar the defendants from introducing that fingerprint evidence to the jury; and the defendants moved to admit the evidence to demonstrate that they were not the robbers. The district court (Judge Crabb of the W.D.Wisc.) granted the Government’s motion - although the reasons for her ruling were less than clear. Even the Seventh Circuit acknowledged that the district court “did not specifically invoked any particular rule of evidence in excluding the fingerprint reports” (id., at 797) - and even though the district court’s ruling was “susceptible to various interpretations.” (Id., at 798).

After they were convicted, the defendants appealed, arguing, inter alia, that the decision to exclude the fingerprint evidence was erroneous. The Seventh Circuit disagreed and affirmed the convictions. It is noteworthy that, as a preliminary matter, the Court agreed that the fingerprint reports in question (a) “were relevant” (id., at 798); (b) that they constituted “certified copies of public records that meet the self-authentication requirements of [Fed.R.Evid.] 902, and would not have required a foundation witness” (id., at 797); (c) that they fell within the public records exception to the hearsay rule contained in Fed.R.Evid. 803(8)(C) (id.); and (d) that, to the extent they encompassed opinions and conclusions (as opposed to purely factual findings) they were still admissible and covered by Rule 803(8)(C), in accordance with the Supreme Court’s ruling in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988). (Id.)

However, the Court then went on to say: “But hearsay goes only to the form of the testimony. The testimony itself must still be substantively admissible.” (Id., at 797). Using that hook, the Court then concluded that the fingerprint reports were not “substantively admissible” in this case. Because the Court’s reasoning for that ruling is, at best, difficult to follow, we have merely set forth what the Court stated: “We believe the [district] court was excluding the evidence because the report, without a witness to explain it, failed to meet the requirements of Rule 403: the reports' probative value was substantially outweighed by the danger of unfair prejudice. . . . [T]o the extent that there could be error in the exclusion of the reports, it was harmless. . . . [T]he probative value of the reports alone is minimal. In light of the other evidence arrayed against the defendants, the exclusion of the reports cannot be said to have had a substantial and injurious effect or influence on the jury's verdict.” (Id., at 798) (Emphasis added). On that basis, the convictions were affirmed.

Apprendi: U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003) - Proving that Apprendi is not dead for all purposes, the Sixth Circuit reversed a sentence because the district court erroneously relied on hearsay evidence to reach the 50-kilogram quantity of marijuana needed to sentence the defendant under 21 U.S.C. § 841(b)(1)(C). Noting that Apprendi requires the district court to find drug quantity beyond a reasonable doubt, the Court said it was improper for the district court to rely on the testimony of Government agents who restated what had been said at the grand jury since grand jury testimony (a) does not fall within the former-testimony exception to the hearsay rule pursuant to Fed.R.Evid. 804(b)(1) because defendant had no opportunity to cross-examine the witnesses, and (b) lacks the necessary reliability to fall within the residual hearsay exception contained in Fed.R.Evid. 807.

Fair Trial: U.S. v. Midgett, No. 01-4674 (4th Cir. 09/04/03) - Convictions for bank robbery and related charges were vacated because the district court impermissibly forced the defendant to choose between two constitutionally protected rights: the right to testify on his own behalf and the right to assistance of counsel.

Fourth Amendment: Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003) - The Court held that the giving of medical examinations to pre-school children enrolled in a Head Start program, without notice or parental consent, did not rise to the level of extreme outrageousness required for liability under Oklahoma law. The decision is particularly noted for Judge McConnell’s detailed examination of the history and development of the Supreme Court’s “special needs” exception to the Fourth Amendment.

Witness Sequestration: U.S. v. Solorio, 337 F.3d 580, 591-95 (6th Cir. 2003) - The Court held that a violation of a sequestration order by a government witness did not warrant the “severe” remedy of disqualifying the witness. The decision is particularly noted for its discussion of the current Circuit split on the issue of whether Rule 615 of the Fed.R.Evid. extends beyond the courtroom to permit the court to preclude out-of-court communications between witnesses about the case during trial.

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