United States v. Merida, 2016 U.S. App. LEXIS 12786

Jason Merida, former executive director of construction for the Choctaw Nation, was tried for conspiracy, embezzlement and tax charges arising from multiple fraud schemes (Missouri hunting/Worth Group, Steel Fraud, Scott Rice fraud). He was convicted on six of seven counts and sentenced to 144 months.
The Nation hired attorney Michael Burrage to investigate suspected fraud by Builders Steel; Burrage took a sworn, court-reported interview of Merida in November 2010, stating the Nation asserted attorney-client privilege over the statement.
The Nation later provided the interview transcript to federal investigators; prosecutors used portions of that transcript to impeach Merida during cross-examination when he testified at trial.
Merida moved for a mistrial, arguing the transcript was protected by attorney-client privilege and its use prejudicially damaged his credibility; the district court denied the motion, finding the privilege belonged to the Nation and had been waived.
On appeal Merida argued (1) he personally held an attorney-client privilege because Burrage led him to believe he was represented individually, and (2) the impeachment using the transcript so prejudiced his credibility that a mistrial was required. The Tenth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Merida held an individual attorney-client privilege in the interview transcript	Merida: Burrage’s statements led him reasonably to believe Burrage represented him individually, so his statements were privileged	Government: Burrage represented the Nation; Merida was a corporate officer and privilege belonged to the Nation, which waived it by disclosing the transcript	Court: Merida failed Bevill factors; privilege belonged to Nation and was intentionally waived — no individual privilege
Whether use of the transcript required mistrial as prejudicial error	Merida: Impeachment with transcript fatally damaged his credibility and trial was close (jury initially reported inability to agree)	Government: Evidence of guilt was overwhelming; transcript use was brief and minimal impeachment	Court: Even if privilege had existed, admission was harmless error given the overwhelming evidence and brief impeachment; denial of mistrial affirmed

In re Foster, 188 F.3d 1259 (10th Cir. 1999) (party claiming privilege must prove applicability)
United States v. Johnston, 146 F.3d 785 (10th Cir. 1998) (privilege covers communications seeking legal advice; client is actual recipient)
In re Grand Jury Proceedings, 616 F.3d 1172 (10th Cir. 2010) (confidential disclosure to third parties waives privilege)
In re Grand Jury Subpoenas (Intervenor), 144 F.3d 653 (10th Cir. 1998) (privilege belonging to corporation, limited personal privilege for officers only if strict factors met)
Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986) (five-factor test for when corporate counsel’s communications may be treated as advice to officer individually)
Upjohn Co. v. United States, 449 U.S. 383 (1981) (corporate internal investigation communications may be privileged when confidential and retained)
United States v. Gabaldon, 91 F.3d 91 (10th Cir. 1996) (mistrial review examines prejudicial impact in context of whole case)
Zolin, 491 U.S. 554 (1989) (privilege purpose: encourage full and frank communications)