F I L E D
United States Court of Appeals
Tenth Circuit
MAY 15 1998
PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
IN RE: GRAND JURY SUBPOENAS,
Jane Roe and John Doe.
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INTERVENOR, No. 97-3120
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 97-CV-2181)
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, * District Judge.
ANDERSON, Circuit Judge.
Intervenor-Appellant 1 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.
*
The Honorable Thomas R. Brett, Senior U.S. District Judge, United States District
Court of the Northern District of Oklahoma, sitting by designation.
1
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 “Jane Roe.”
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BACKGROUND
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
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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 view.
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 facie showing.
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
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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 to intervene.
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 305.
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
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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. 2
DISCUSSION
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,
2
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.
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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
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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
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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
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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 company.
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).
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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
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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
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(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,
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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
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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
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crime-fraud exception vitiates the limited attorney-client privilege between
Intervenor and Roe and Doe. 3
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 226-27.
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,
3
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 them.
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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
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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. 4 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.
4
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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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
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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
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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
government’s submission.
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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
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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.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court.
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