UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40917
Summary Calendar
VERNON LEVIEGE,
Plaintiff-Appellant,
VERSUS
ST. MARY’S HOSPITAL, St. Mary’s Hospital, Galveston (a member of
Sisters of Charity of the Incarnate Word, Houston, Texas),
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(G-94-CV-682)
May 4, 1998
Before DUHÉ, DeMOSS, DENNIS, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:1
This case concerns the crime-fraud exception to the attorney-
client privilege. An employee sued his former employer alleging
race based discrimination. During trial, the employer called an
African-American female employee to testify that she had never
experienced workplace discrimination. As rebuttal evidence, the
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
employer asked the court to call his former lawyer to testify
arguing that the lawyer would show that the witness had perjured
herself. The trial court refused finding that the lawyer’s
knowledge resulted from the lawyer consulting with the witness as
a client. The court held that the privilege arose and that the
employee could not show that the crime-fraud exception applied. We
affirm.
I.
Vernon Leviege (“Leviege”) sued his former employer, St.
Mary’s Hospital (“St. Mary’s”) alleging that he was fired because
of his race. Shortly before trial, Leviege’s attorney, Anthony
Griffin (“Griffin”), successfully moved to withdraw as counsel
claiming that he had a conflict of interest. Griffin stated that
he had earlier consulted with Linda Ferguson (“Ferguson”), a St.
Mary’s employee and a potential witness for the hospital, about a
related matter. He further stated that she had perjured herself in
her deposition.
When St. Mary’s called Ferguson to the stand, she testified
both on direct and cross-examination that, as an African-American
female, she had never experienced discrimination at St. Mary’s.
Leviege asked to court to allow him to call Griffin to rebut
Ferguson’s testimony. St. Mary’s objected on the grounds of
attorney-client privilege. Leviege argued that Griffin could
overcome the privilege through the crime-fraud exception. The
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trial court disagreed stating that Leviege offered no evidence that
Ferguson planned to commit a crime or fraud upon the court when she
consulted Griffin. The jury found that St. Mary’s did not
discriminate against Leviege. Leviege now appeals arguing that the
district court erred in not accepting his offer of proof regarding
the excluded evidence and that the district court erred in refusing
to permit Griffin to testify.
II.
We review the trial court’s decision not to allow Griffin’s
testimony for abuse of discretion. United States v. Zolin, 491
U.S. 554, 572 (1989); In re Grand Jury Proceedings, 55 F.3d 1012,
1015 (5th Cir. 1995).
Leviege argues that Rule 103(a)(2) requires litigants to make
an offer of proof. While Leviege may correctly state the rule, it
does not apply here. The Supreme Court in Zolin2 held that a
district court may review the allegedly privileged communication
in camera to decide if the crime-fraud exception applies. Zolin,
491 U.S. at 564 (emphasis added). The word “may” is an inherently
permissive one; thus, by definition it cannot require. We hold,
therefore, that the district court does not have to review an offer
of proof. In fact, the Supreme Court in Zolin set out the standard
by which district courts should be guided when determining if an in
2
We note with interest that Appellant’s brief does not mention
this case even though it is a Supreme Court case that directly
controls the outcome.
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camera hearing is needed. The Court held that a judge should
require a showing of factual basis adequate to support a reasonable
person’s good faith belief that an in camera review may reveal
evidence establishing that the crime-fraud exception applies.
Zolin, 491 U.S. at 572. Should the offeror overcome that hurdle,
the court may then conduct an in camera review. Id. Here, Leviege
did not show any factual basis that Ferguson consulted Griffin with
the intent to plan a crime or a fraud. The fact that she may have
perjured herself in the deposition or at trial is not sufficient.
Leviege was required to show that when she consulted Griffin, she
intended to lie in her deposition and/or at trial.
Leviege’s second argument is that the trial court should have
permitted Griffin to testify because Ferguson waived her privilege.
In support, he points to the fact that St. Mary’s lawyer said that
Ferguson had described the basic nature of her visit with Griffin
in a meeting they had to discuss the case. We do not decide
whether Ferguson waived her privilege. Leviege did not argue
waiver to the district court, and thus, we cannot consider the
argument. Arguments not made to the district court are waived and
cannot be raised on appeal. United States v. Layne, 43 F.3d 127,
134 (5th Cir. 1995); United States v. Burian, 19 F.3d 188, 190 n.2
(5th Cir. 1994). Thus, we hold the trial court’s refusal to let
Griffin testify was not an abuse of discretion.
AFFIRMED.
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