Impounded

right appeal waived his has [Pultrone] by that conclusively established IMPOUNDED.

issues his conviction on in this case judgment, No. 00-5186. indictment[,]” and the count [two] of the amount calculation District Court’s Appeals, Court of United States him. cocaine attributable Third Circuit. (10th Mendes, F.2d v. Cir.1990). 31, 2000. Argued Oct. action taken resentencing, the At Filed Feb. direction only our District Court reflected minimum sentence be statutory that his Pultrone abandoned

imposed; because conviction or aspect of his

appeal, no other In this circum- at issue.

sentence was

stance, appeal remand on grant of “[t]he from; appealed reopen the order

does not

instead, pro- a new remand commences ultimately will terminate

ceeding which (citing order.” Id. at 437-38

another final R. Wright, Alan Arthur Miller

15 Charles Cooper, Federal Practice

& Edward H. 1990)). § 1 (Supp.

and Procedure allegations of er-

We will not revisit here conclusively which were determined

ror Judgment. original respect to Pul

Our conclusion he received ineffec allegation

trone’s As a

tive assistance of counsel is similar. matter, claims

general we do not entertain of counsel

relating to ineffective assistance appeal. United States v. Cociv direct Cir.1996).

era, 104 To the F.3d have might

extent this issue been

appropriate appeal for evaluation on direct exception the narrow described

under Headley,

United States (3d Cir.1991), issue, too, this was origi abandoned his

waived when Pultrone which appeal. Any may

nal claim Pultrone

have based on ineffective assistance of provi

counsel under the must be raised §

sions of 28 U.S.C. 2255.

III.

Because Pultrone has waived each of the here,

allegations of error raised we will jurisdiction. appeal

dismiss this for lack of

3Q9 3H (argued), Allan Tananbaum George S. ernment requested fuller pro- document Leone, Attorney, Office of United States duction. attorney responded that cer- Newark, NJ, appellant. for categories tain of requested documents did not exist. Wolf, Block,

Cathy Fleming, & Schorr Solis-Cohen, City, appellee, New York for In May again re- John Doe quested the documents under its initial subpoena and advised the Friedman, (argued), Paul J. Fishman “the jury will request also that the Seiler, Newark, Kaplan Jersey, & New target appear before it with regard to the appellee, John Doe 2. production of the question.” documents in attorney provided some SCIRICA, additional Before: NYGAARD and including documents check BARRY, ledgers Judges. Circuit canceled target checks. The was not sum- moned appear before grand jury. the THE OPINION OF COURT 1996, In September the government SCIRICA, Judge. Circuit issued a subpoena second requesting ad- In grand jury this proceeding, the issue ditional documents including: general whether, appeal on on the present- facts ledgers, journals, cash disbursement cash ed, exception the crime-fraud overrides the receipts, sales and payable accounts attorney-client privilege. In proceed- journals, calendars, as well as diaries below, ings the District Court declined to appointment and books for all of the enforce a grand jury subpoena issued to an target’s employees. business officers and attorney. Citing excep- the crime-fraud The attorney again responded that most tion, government appealed.1 has requested of the documents did not ex- January ist. On govern- I. attorney ment advised the it was subpoenaing “the custodian of records years ago Over four in April one target [of of] the businesses] federal grand jury commenced investigat- produce responsive all original records ing the target’s business transactions and before the Jury Thursday Grand next subpoenas issued several target’s to the [January government 16].” The also affiliated businesses. The target’s attor- subpoenaed an target officer of the busi- ney assumed responsibility responding testify ness to before to the United Attorney’s office. (also 16) January about her knowl- government’s

The sought, first edge subpoenaed of the existence of the all ... relating records to work per- government documents. The never en- [by formed the target].... These rec- subpoenas. forced its ords should include but are not limited checks, to: All business check registers, In April November cash receipt and disbursement records. March 1999 the government subpoenaed These records should also include con- more target records from the business. tracts, invoices, documents, billing bid attorney produced The some of the re- documents and correspondence specifi- quested represented documents but again cally relating target’s to [the activities] categories that certain of documents did period. for the [relevant] 8, 1999, not exist. On March the Federal attorney produced The several Investigation documents. Bureau of executed search believing But them inadequate, gov- target’s warrants on the home and also on preserve (the In order confidentiality tigation) attorney target’s and the attor- proceedings, we will refer to the dramatis ney subpoena). who is the witness under (the personae target target as the of the inves- III. FBI offices. The business target’s many records and seized uncovered and jury plays unique role attorney represented had documents system. our adversarial gov- April did not exist. On theory of recognized “the whole Court has attorney to testi- subpoenaed ernment belongs that it to no branch its function is jury about fy before Government, serving as the institutional ... fac- for [his] of information “source[s] a kind of buffer or referee between failing ... and basis tual assertions people.” and the Government categories of rec- certain produces [sic] Williams, States v. ords.” (1992). 1735, 118 L.Ed.2d 352 It has S.Ct. attorney- invoked the After the stated, government filed a mo privilege, client jury normally oper- Although testimony. Claiming his tion to ates, course, in the courthouse exception invalidated the the crime-fraud judicial auspices, under its institutional privilege, the Branch relationship with the Judicial attorney to used the target argued been, traditionally speak, has so to justice in violation of 18 U.S.C. obstruct length. Judges’ arm’s direct involve- “fundamentally Holding § it was 1503.2 functioning ment attorney’s testimony, unfair” to jury generally has be confined to the declined to assess the District Court calling grand ju- of constitutive one exception. crime-fraud applicability of the administering their together rors and Jury Empan the Grand In the Matter of oaths of office. 4, 1997, Misc. No. 97- eled on December (D.N.J. 8, 389, February op. at *8 slip Id. 2000). recognized cases have Several appeals contending the government authority judiciary’s limited over the failing in to decide District Court erred ,and power. indictment jury’s subpoena exception applied. whether the crime-fraud Williams, 54-55, 112 504 U.S. at S.Ct. the District Court exceed- It also contends (court superviso it’s 1735 can not exercise authority quashing ed its in prosecutors present to ry power require unfairness:” of “fundamental because grand jury); to the exculpatory evidence States, 359, Costello v. United 350 U.S. II. (1956) 406, 363-64, 100 L.Ed. 397 76 S.Ct. quash review the decision We (court supervisory may not exercise its of discre grand jury subpoena for abuse power permitting to mandate a rule defen Proceedings, 115 Jury tion. In re Grand jury challenge grand dants to indictments Cir.1997). (5th 1240, exer F.3d 1243 We incompetent evi inadequate because of or legal over the issues cise de novo review dence). in In re recently As we stated underlying application of crime- Jury Subpoena, Grand attorney-client priv exception fraud Inigo, v. Because it is essential to the federal ilege. United States Cir.1991). 641, justice system, grand jury] criminal [the We review the 656 powers investigation ... of great District factual determinations has Court’s inquisition. may generally ... applying attorney-client privilege [It] and or “compel production of evidence clear error. Id. States, any ... provides: § in or of court of the United 2. 18 U.S.C. 1503 influence, obstruct, force, or im- or endeavors corruptly, Whoever or threats or justice, threatening pede due of shall by any or tion, letter or communica- administration influence, intimidate, punished.... endeavors to impede any grand petit juror, or officer

313 testimony law’); of witnesses as it consid- common Branzburg v. Hayes, 408 665, 688, appropriate, operation 2646, gener- ers its 92 S.Ct. 33 L.Ed.2d (1972) (“the ally pro- powers is unrestrained technical evidentiary rules are not governing subject cedural unlimited and are to the supervision judge”); of criminal trials.” Kastigar conduct v. Unit States, 441; 453-54, ed 406 U.S. 92 S.Ct. (3d Cir.2000) 213, (quoting F.3d 1653, 32 L.Ed.2d 212 (holding grand Calandra, United States v. 414 U.S. jury may override a Fifth Amendment (1974)). 38 L.Ed.2d S.Ct. claim only if the witness granted immu “Any holding that would saddle a nity co-extensive against jury with minitrials and preliminary show self-incrimination). Supreme ings assuredly impede investiga would its stated, “grand juries has are not licensed public’s tion and frustrate interest engage arbitrary expeditions, fishing the fair and expeditious administration of may they nor select targets investiga the criminal laws.” United v. States Dion tion out of malice or an intent to harass.” isio, 1, 17, 410 U.S. 93 S.Ct. Enter., Inc., R. 498 U.S. at 111 S.Ct. (1973). L.Ed.2d 67 , theAs Court has made As safeguard against potential clear, required “the cannot be abuse of the grand jury’s investiga broad to- justify the issuance of a power, tive the Federal Rules of Evidence subpoena ... very because purpose and the Federal Rules of Criminal Proce requesting the information is to ascertain grant dure authority limited for courts to probable whether cause exists.” United review jury subpoenas. In this Inc., R. Enterprises, 498 U.S. case, the principal ju two mechanisms for 112 L.Ed.2d 795 501,3 dicial are review Fed.R.Evid. recog Henkel, 43, (citing Hale v. 201 U.S. nizing attorney-client the privilege which 65, 370, (1906)). 26 S.Ct. 50 L.Ed. 652 protects confidential communications be “Requiring the explain Government to in tween an attorney and his client from dis particular too much detail the reasons un closure, 17(c), provid and Fed.R.Crim.P. derlying subpoena a compro threatens to ing that court “[t]he on motion made indispensable mise ‘the secrecy of the promptly may quash modify subpoe or the ” grand 299, jury proceedings.’ Id. 111 at compliance na if would be unreasonable (quoting S.Ct. 722 ' States v. John oppressive.” son, 513, 1233, 319 U.S. 63 S.Ct. 87 (1943)). L.Ed. 1546 IV. The District Court did not refer to Fed.

Despite investigato these broad 17(c) R.Crim.P. attorney-client nor to the ry powers, there are some on limitations privilege it when declined to the grand jury’s authority the evi subpoena stated, attorney’s Calandra, testimony. dence. U.S. at (the grand jury “may S.Ct. 613 not itself will purposes Court assume for of privilege, violate valid analysis a whether estab its attorney] [the is inno- Constitution, statutes, lished by or the cent any wrongdoing of and has been provides: 3. preted by Fed.R.Evid. 501 the courts of the United States in light experience. Except required by as otherwise of reason and the Consti- 1101(d)(2) provided of the provides tution Act United States or Fed.R.Evid. Congress prescribed by of or in rules privileges rules on articulated Fed.R.Evid. Supreme pursuant statutory applicable jury proceedings. 501 are witness, authority, person, of a government here does not contest the State, government, political subdivision attorney's right to assert the governed by principles thereof shall be privilege. they of the common law as may be inter- government sought quash wrongdo- merely as a conduit used of relevancy. The Court grounds on the of justice. Nev- i.e., the obstruction ing, Circuit held Appeals for the Fourth unfair for fundamentally it is ertheless relevancy must establish government [the to seek Attorney’s Office the U.S. subpoe- evidence admissibility in this case. testimony attorney’s] hold- Supreme Court reversed naed. The Jury Empan- the Grand In the Matter of improperly Appeals ing the Court I, at *8. mi December eled government on the placed the burden the desired to obtain 'Reasoning that grand jury’s relevancy. Citing prove information, could have judiciary, from the independence historical attor- harmful to the less pursued avenues jury subpoena is the Court said enforcing its including privilege, ney-client recipient reasonable unless its presumed and the records target subpoenas otherwise. Fed.R.Crim.P. demonstrates stated, custodian, District Court 17(c) only when judicial oversight permits appointing nor for neither The award op- unreasonable or “compliance would be of records a custodian insisting upon 298t-99, 111 S.Ct. pressive.” 498 U.S. testimony securing cannot be Thus, held trial courts can the Court At- attorney. Instead subject’s place govern- an initial burden on upon acted have torney’s Office should jury subpoena is prove ment to and not'as- subpoenas procured it necessary and relevant. fall back on the sub- that it could sume Similarly, Baylson Disciplinary v. attorney. ject’s Pennsylvania, Bd. Ct. of Id. at *9. denied, Cir.1992), cert. testimony, lawyer’s Compelling the 123 L.Ed.2d 507 U.S. said, the core of the against “goes (1993), Pennsylvania Rule of we held a would unnecessari system and adversarial governing grand Professional Conduct his a client and ly wedge’ ‘drive a between subpoena procedures was unenforcea ‘chilling’ communicat attorney, thereby it with the ble because interfered (citing at *10 Loatman ions.”4 Id. independence. The Su jury’s institutional (D.N.J. Bank, 174 F.R.D. Summit Pennsylvania adopted had preme Court of 1997)). pro which a Rule of Professional Conduct vided: V. public prosecutor governmen- A or other District Court relied Because the not, prior judi- lawyer tal shall without analy 17 nor an on neither Fed.R.Crim.P. subpoena attorney an approval, cial .to exception, gov the of the crime-fraud sis grand jury or other appear before exceeded its ernment contends the Court activity in investigating criminal tribunal subpoena. authority quashing the prosecutor where the circumstances to lawyer seeks governmental

other provide to attorney/witness A. the person who is or concerning evidence Enter., Inc., at In R. 498 U.S. represented by the has been discussed Supreme the S.Ct. (Citation omitted). witness. regulating grand role in the court’s limited jury target Comment jury grand A subpoenas. clients, many against the court feared subpoena their discussing impact of this In the attorneys would be "unwill- criminal defense practice, District Court stated on criminal the satisfy subpoena for fear attorneys ing informally it is for criminal defense common consequences.” In the Matter informally negotiate of the government to and the Jury Empaneled on December grand jury Grand production for of materials investigations. forcing attorneys testify at *10. By required “prior poenas

It is intended that the place nor the initial burden on the judicial approval” normally will be with- government prove validity of its unless, hearing held after a conducted subpoenas. Baylson, 975 F.2d at 106- regard appropriate Williams, with due for the In Supreme OS. Court stat- (1) secrecy, ed, need for the court finds protected information is not sought from Any power federal courts have to fash- by [concerning disclosure Rule 1.6 confi- ion, initiative, on their own rules of information], dentiality attorney- grand jury procedure a very is limited client privilege product or the work doc- one, remotely not comparable to the (2) trine; sought the evidence relevant is power they maintain over pro- their own (3) proceeding; compliance to the ceedings. certainly permit would not subpoena would not be unreasonable judicial reshaping of the in- jury (4) oppressive; purpose stitution, substantially altering the tradi- primarily is not to harass the tional relationships prosecu- between the client; attorney/witness or his or her tion, court, the constituting and the there is no other feasible alter- itself, (citation omitted). grand jury to obtain the information sought. native 50,112 504 U.S. at S.Ct. 1735. (quoting Id. at 104 Rule 3. 10 of the Penn- Costello, Similarly in stated, the Court “it Conduct). sylvania Rules of Professional would run counter to the history whole pre-service judicial review mandat- institution, laymen which rule, by Pennsylvania held, ed we ex- conduct theft inquiries by unfettered tech- ceeded the district authority court’s nical permit rules” to federal courts to in grand jury intervene proceedings. independent establish rules governing the Noting Court’s reluctance grand jury enforcement of subpoenas. 350 place judicial restraints on 76 S.Ct. 406.

jury, 106-08, see id. at jury’s historically recognized indepen- restraint, however, form of One dence, we held “the district may 17(c). may be found Fed.R.Crim.P. But guise under supervisory its noted, as the District applied Court never power or local rule-making power, its im- 17(c). Instead, -Fed.R.Crim.P. it held that pose the sort of substantive restraint on must demonstrate the evi contemplated sought dence could not be obtained Rule 3.10.” Id. at 110. We also held other pre means. The District Court’s the Pennsylvania justi- Rule could not be may scribed course of action salutary fied under Fed.R.Crim.P. 17 reasoning safeguard and efficacious to attorney- that neither client privilege. appropriate Under cir any

Rule 17 nor provision other in the cumstances, it may well constitute the bet federal judi- rules or statutes allows for practice. ter But authority we see no cial intervention a subpoena before is init the or rules the case law. R. (c) served. Instead subdivision provides Enter., Inc., 298-99, 498 at U.S. 111 S.Ct. party may that a quash move to a 722., sub- Generally, the does not poena grounds on the compliance that bear the initial burden to justify grand its would be unreasonable oppressive id; jury subpoena. See see also Stern v. only after it has been served. United States Dist. Ct. the Dist. of (1st Massachusetts, 214 F.3d 16 Id. at 108. Cir. 2000) (holding local permitted rule which

B. judicial approval subpoena of “alter[ed] the role, is well established grand jury’s that courts place[d] historic it under may impose substantive overly limitations on supervision, intrusive court curb[ed] power grand jury to issue investigative powers, sub- its broad reverse[d]

316 public interests thereby promote broader to its validity accorded presumption law and administra secrecy of its in the observance of undermine[d] subpoenas, ” Zolin, justice.’ de- States v. procedural tion of create[d] and proceedings, 554, 562, 105 109 S.Ct. delays”). 491 U.S. tours and (1989) 449 Upjohn, (quoting L.Ed.2d 469 independence The institutional 677).6 389, 101 S.Ct. U.S. at jury has been a secrecy of and for over indictments of criminal hallmark jury may not “itself from the Any deviation three centuries. estab privilege, a valid whether violate in practices governing established Constitution, statutes, or the by lished lightly. taken We should not be volvement Calandra, 414 U.S. common Law.” was con recognize the District reason, may courts 613. For this 94 S.Ct. subpoena of this with the effect cerned valid sub quash an otherwise But relationship. attorney-client testimony under attorney’s an poena for 17(c) under Fed.R.Crim.P. proper course privilege. Fed.R.Evid. lawyer’s testi on whether was to rule in sought is fur legal advice 501. When attorney- under the mony protected was however, fraud, therance of a crime or “a different By employing privilege. client waived and attorney-client' privilege is “fundamental fairness” based on analysis” may compel lawyer’s testimo grand jury from the estab Court deviated the District States, See, e.g., v. United ny. Clark the institu which ensure procedures lished 1, 15, L.Ed. 993 U.S. jury.5 independence tional (1933) (“A who consults an client Therefore, abused its the District Court him in com that will serve for advice discretion. help have no from mission of a fraud will told.”); truth He must let the the law. VI. (“when legal consul Inigo, 925 F.2d at 656 turn to whether the We now fraud, of a crime or tation is furtherance application erred its District Court protected.”). ... will not be the statements attorney- exception to the the crime-fraud excep the crime-fraud We have described “Worthy of maximum privilege. client manner: tion this Inc., Group protection,” Liggett Haines v. (3d Cir.1992), attorney-client privilege designed is attorney- full encourage clients to make disclo- “oldest of the privilege is one*of the client may of facts to counsel so he communications sure privileges for confidential States, ethically car- properly, competently, and Upjohn known.” Co. United ultimate representation. The ry 66 L.Ed.2d out his S.Ct. (1981). promote proper administra- aim is by As noted however, end, Court, justice. tion of That privi viewed long [the “courts have frustrated if the client used to ‘en would be lege’s] ... central concern as one continuing lawyer’s services to further full frank communication be courage Thus, or tort. when the or future crime attorneys and their clients tween such, (3) capacity as communications noting the United States It bears Attor- (4) ney provides, "Approval relating purpose, the Assis- con- [of Manual to that made in Attorney fidence, client, (6) Divi- (5) tant for the Criminal General in- by the are at his required to issue sion] [a] permanently protected from sistence attorneys for information trial legal ad- himself or disclosure relating representation client.” [a] to the visor, (8) protection [may] be except the Atty's. Man. 9-13.410. waived. Jury Empanelled Matter the Grand In the of protected under the 6. Communications are (3d 14, 1978, February 603 F.2d 474 attorney-client privilege when: Cir.1979) (citations omitted). (1) (2) legal any sought advice kind is of professional legal in his from a advisor

317 consulted, lawyer not with respect assessment, is to this attorney the contends the past wrongdoing illegal but to future government presented insufficient evi- activities, the privilege longer is no de- dence that the target and the target busi- and the crime-fraud exception fensible corruptly ness justice. intended to obstruct play. comes into The District Court declined to de Jury In re Grand Proceedings, 604 F.2d cide government whether the submitted (citations Cir.1979) omitted). 802 prima sufficient facie evidence of to intent party A seeking compel to tes justice. obstruct it Although correctly timony under the exception crime-fraud law, stated, outlined the the Court bears the initial burden of prima a proving Typically, point at this in the Opinion, facie a case of crime or fraud before the the begin Court would analyze to wheth- attorney-client is waived.7 er the has pri- articulated a Government Haines, (“[T]he F.2d at party 975 95-96 ma facie showing of a fraud or a crime seeking discovery present must evidence 1503(a) pursuant § to 18 U.S.C. by first which, fact-finder, if by the believed would whether examining there is evidence of be sufficient support to a finding that the criminal finds, intent. This court how- elements of the exception crime-fraud ever, unique that the sur- circumstances met.”); were Feldberg, In re 862 F.2d rounding this case warrant a different (7th Cir.1988) (“[A] prima facie case analysis than that by articulated the must be regard defined with to its func parties. require tion: to the adverse party, the one In the Matter the Jury Empan Grand of superior with access to the evidence and in eled on December at *8. explain best to position things, to come We believe this explanation.”). Here, forward with that was error. See, Clark, e.g., 289 U.S. at government target asserts the S.Ct. busi 465; Haines, 90; justice ness F.2d at In re by failing obstructed Grand dis Jury Proceedings, subpoenaed close documents 604 F.2d at 802. jury.8 government proper maintains it course would have been has to deter prima sufficient mine the applicability submitted facie evidence of the crime-fraud justice exception of obstruction of to show the exis privilege. crime, tence of in the form If of documents has submitted sufficient during found prima FBI’s search of tar facie evidence of a crime or fraud offices, get business’ as well as legal from ex and sought advice was from given parte, in camera affidavits. Challenging therewith,9 in connection Clark, 14-15, In 289 U.S. at 53 S.Cl. proceeding tice; jus in the due administration of (4) evidentiary Court described the the action had the "natural application for the probable standard of interfering the crime effect” due exception: fraud justice. administration of Collis, See United (6th 1997). Cir. showing prima There must be a of a facie satisfy case sufficient to judge that the Jury Subpoena, 9.In In re Grand F.3d light be should let ... To drive [attor- 218-19, we it held is not "violative of due ney privilege away, client] must be there process rely parte government on an ex "something give charge”; colour to the affidavit to determine that the crime-fraud "prima there must facie that it evidence exception applies target- and thus has some foundation in fact.” When the subpoenaed attorney testify client's before supplied, evidence is secrecy the seal of grand jury.” Id. at 219. Because broken, (citations omitted). and footnote secrecy grand jury proceedings need for prima 8. The elements of a facie prohibits of ob- proceeding case adversarial regarding an justice evidence, § parte, struction under 18 U.S.C. ex may rely camera courts (1) judicial proceeding; are: existence exclusively parte finding on ex materials in (2) knowledge pro- or notice of pending prima sufficient facie evidence to invoke ceeding; acting corruptly exception with the intent rely crime-fraud and "we must influencing, obstructing, impeding the district court’s appellate discretion and NYGAARD, dissenting. Judge, Circuit has been privilege attorney-client waived, jury may and the Majority’s I with the disagree Because testify his communi attorney to about Court never that “the District conclusion See, e.g., In re target. with the cations 17(c) instead] applied [and Fed.R.Crim.P. (Law Firm), 879 F.2d Impounded Case demon- government that must held (3d Cir.1989); In re Sealed 1211, 1213-14 sought could not be strate the evidence (D.C.Cir. Case, 399-401 754 F.2d means,” respectfully I obtained other 1985). attorney finding, the Absent this I Majority Opinion at 315. be- dissent. attorney-client priv may validly assert the validly exer- lieve that the District Court jury subpoe response to the ilege 17(c) Rule discretion under cised its Investigation, Jury na. See In re Grand “no-alternative- impose a broad did Cir.1990) (a (3d party 918 F.2d Therefore, I affirm. would means” test. historically recognized privi may a invoke that the District claims Government from dis lege protect to communications broad-reaching “no-alter applied jury). For these closure to the reasons, whether Court must decide test” to determine the District native-means government has submitted attorney’s subpoena whether was fair and the intent to obstruct evidence of sufficient Appellant’s at therefore enforceable. brief this evi and determine whether justice Apparently, Majority agrees.1 39. attorney- a waiver of the supports dence analysis employed that the court an holds the court deter privilege. client Once fairness’ de [that] “based on ‘fundamental is sufficient evidence of mines there procedures from the established viated attorney-client fraud to waive the crime or indepen which ensure the institutional judgment review its for abuse privilege, we jury.” Majority Opin dence of the Jury Subpoe In re Grand of discretion. agree at I that such a blanket ion na, 219; Jury In re Grand 223 F.3d rule, improperly imposed, it were would if (10th Cir. Subpoenas, place upon limitation a substantive 1998) (“we [of discretion] find no abuse grand jury, is outside the District Court’s to con district court’s refusal either the implicit supervisory powers, and has been hearing or its separate duct a rebuttal Baylson ly rejected by this Court gov of the refusal to reveal the contents Bd., 975 F.2d 102 Cir. Disciplinary submission”). ernment’s 1992). Appellant’s brief at 39-41. See However, disagree VIL Majority’s I with the of the District Court’s characterization reasons, will foregoing For the we va- im- holding. The District Court did not findings cate and remand for under Fed. pose upon limitation 17(c) new substantive excep- and the crime fraud R.Crim.P. 17(c) privilege. grand jury. Rule of the Federal tion to the defending privilege given opportu- be review of the exercise of that discretion heard, argument, nity power grand jury to be evidence ensure that the of the is not hearing seeking exception secrecy at the an to the preserving that is a abused while Feldberg, privilege.”): 862 F.2d at process.” see also necessary grand jury element of the n (after prima showing exception facie secrecy or confiden Id. Where there are no however, party asserting applies, privilege should have tiality imperatives, would there rebut, opportunity "if the finds permitting impediment seem to no satisfactory, explanation re- prima challenge government’s mains.”). evidence, subject facie also to the Court’s admonition to avoid "minitrials.” 764; Dionisio, least, very Majority 410 U.S. at but see 1. At the believes Industries, Technologies, "impose[d] Laser Inc., Ltd. v. Reliant lim- the District Court substantive (N.D.Cal.1996). power In [and 167 F.R.D. itations on the context, permitted placed] we have this. See on the civil the initial burden Haines, ("fundamental prove validity subpoenas.” Ma- 975 F.2d at 96 con of its Opinion cepts process require party jority at 315. of due that the

319 Rules of Criminal states that it Procedure before and found that it was “fundamen- may modify ... or quash “[t]he [a] tally unfair for the Attorney’s U.S. Office if compliance would be unreason attorney’s] [the to seek testimony?’3 Rule See also United 17(c) empowers a oppressive.” able or quash court to a subpoe- Enters., Inc., States v. R. 292, 498 U.S. if na it is oppressive.” “unreasonable 299, 722, (1991). 111 S.Ct. 112 L.Ed.2d 795 Presumably, the Majority believes that a 17(c) Majority recognizes Rule as a finding of “fundamental unfairness” is in- upon valid “form of restraint” satisfy sufficient to this standard. In con- jury, but nonetheless that the holds Dis trast, I fail to see a A subpoe- difference. trict apply Court failed to it. Majority na described as “fundamentally unfair” Opinion at I 315. that the concede District just could as easily be described as “unrea- explicitly Court never invoked Fed. oppressive.” Therefore, sonable I be- 17(c), R.Crim.P. but an such omission is lieve that the District Court sufficiently not fatal long as as what the court did is 17(c). invoked authority of Rule Un- Furthermore, clear.2 “may we affirm the Majority, like the I would not reverse any District Court on grounds supported entirely upon based an unimportant se- Morra, v. Nicini the record.” 212 F.3d mantic distinction.4 (3d Cir.2000). 798, 805 The District Assuming Court in his case consid- the District Court did act un- specific 17(c), ered the facts and circumstances der Rule we review its decision to Baird, 856, (3d Cir.1987) (“The 2.See United States v. 109 F.3d 419 bankruptcy judge did (3d Cir.1997) ("Although 862 the court did explicitly not state paragraph which under explicitly not state denying that it was however, § 2715 he remedy; fashioned his motion, nor did it doing state the for reasons presume we can that his calculation was ren- so, it is clear from the record that the court 2715(b).”); § dered under Chirinos de Alvarez carefully cooperation considered Baird's 1240, Corp., v. Creole Petroleum 613 F.2d reference.”); § within the 5K1.1 frame (3d Cir.1980) 1244 ("Although the court did Fellheimer, Braverman, Eichen & P.C. v. Char so, clearly not apparent state it is a from Inc., 1215, (3d ter Techs. Cir.1995) ("While-it 57 F.3d 1228-29 review of its decision that the dismissal was bankrupt is that the true primarily based ground plain- on the that the cy court did acting not that it was indicate ground tiffs had not upon stated a which 328(c), pursuant §to ... we find that the granted.”) relief could be denial application may of FE&B’s fees upheld bankruptcy as an exercise 3. The court cited numerous avenues that the 328(c).”); authority § court's under pursued Government could have to obtain the Sallins, States v. 346 2 F.2d n. information, same are "which far less offen- Cir.1993) ("[T]he district court did not state seeking pierce attorney- [than] sive admitting its reason for the evidence. [How privilege.” client subpoenas included These ever], we will assume that district court Attorney’s that the U.S. Office choose not to believed the evidence was admissible as back enforce and the failure to Government’s insist Thomas, ground.”); United v. 961 F.2d a that custodian of confirm the attor- records (3d Cir.1992) ("Although the dis ney's assertions. The court also noted that explicitly trict court did not state in its writ compelling testimony his could "unnecessari- judgment foregone ten year fifteen ly wedge’ 'drive a a between client and his a upward depar sentence basis was attorney, thereby 'chilling' communications.” ture, we possession believe Thomas’ firearm played major, predominant, not if role in "unfair,” beyond dispute is decision.”); sentencing "unrea the court's Inmates of sonable,” Wecht, "oppressive” Allegheny County are often used Tail 901 F.2d (3d Cir.1990) synonymously. A ("Although Westlaw searched revealed the dis decisions, 1710 federal trict court did 40 of which were Su whether it intended slate decisions, preme July ap its sanction, where contempt order be a civil "unfair” peared it clear within five is of "unreasonable” from circumstances words Gore, "oppressive.” e.g. that the order properly is most Bush v. characterized contempt as a coercive civil order entered in 148 L.Ed.2d 388 J., post-permanent injunction proceeding.”); (Ginsburg, dissenting) ("Refusing to Co., Sprinkler Meyertech supplant Southeastern Inc. v. Illinois law a federal definition (In waiver, Corp. Meyertech Corp.), re explained we that the state court's importance of the attor- nized the central subpoena solely for quash relationship. ney-client “uphold the must We abuse of discretion. protecting means of the most common clearly it is ‘unless court’s decision

district only In relationship, but it is not the one. support in the rec arbitrary or without ” situations, as the factual such appropriate Dent, v. 149 F.3d ord.’ can, case, court within its present a district Cir.1998).5 (3rd nothing There is discretion, un- that a conclude that the District suggest to record it oppressive because reasonable quash the Govern to Court’s decision relationship, harms specific these subpoena under ment’s facts apply. if the does not even an abuse of discretion. constituted enforcing the that was concerned subpoena would A constant threat of put attor subpoena would Government’s ability lawyers cooper- to affect the also precarious position,” sub neys “very in a The Govern- government. ate with the any jury subpoena jecting them to duty to safe- “[t]he ment contends that pertaining they representations made time relationship between healthy ‘the guard subpoenaed records. to the existence of criminal At- defense bar and the U.S. (“I guess lawyer App. at 172-73 See squarely par- with the torney’s Office’lies Attorney’s a word to the U.S. say can’t itself, relationship not the dis- ties to be things because he’d office about those brief at 52. It Appellant’s trict court.” testify in to as to what subject coming appears that the Government misunder- is.”). knowledge his course of If a court stands the court’s concern. jury subpoena a grand were to enforce certainly chill commu- threat would This this, attorney in a case such as against an attorney and client. nication between numerous alternative where there were Majority Both the and the informa- gathering avenues of desired believe, however, that the attor- seem tion, impose subpoe- the threat of it would only by is the ney-client privilege means representations all made coun- na over protect court can which a district escape my not attention that sel. does relationship. Majority Opinion at 316 See Attorney’s grant this would the U.S. Office (“[T]he under Fed. proper course much in fact that leverage' tremendous —so 17(c) was rule whether R.Crim.P. produce would any competent counsel testimony protected under lawyer’s was respond inquires. than custodian rather Appellant’s attorney-client privilege.”); severely This would App. at 171-75. (“The only proper brief at 13-14 substan- jus- hamper efficient administration of ability to grand jury’s tive limitation on the tice, paramount concern to this matter of attorney’s] testimony is the [the Court. attorney-client privilege.”). I do not read narrowly. might acceptable consequences a district court’s discretion so These reasonable) (and if the had no jurisprudence long recog- American has Government underrepresentation, strength time of and the 'should bind us unless so unfair declaration purports to establish an of the evidence that application in its to those or unreasonable representation 'unfair and unreasonable’ ”); asserting right a federal as to obstruct it.’ Duren.”). examined under should be Industry Superior Ltd. v. Asahi Metal Co. 102, 116, California, 480 U.S. Jury Subpoena, 5. See also In re Grand (1987) (O’Connor, 94 L.Ed.2d 92 (1st Cir.1998); F.3d United States J., ("[T]he concurring) personal exercise of Chen, (9th Cir.1996); In 99 F.3d jurisdiction by a California court over Asahi Matters, (1st Jury re Grand 751 F.2d in this instance would be unreasonable and Cir.1984) ("We deci review a district court unfair.”); Beyer, Ramseur v. quash, quash, not sion (3d Cir.1992) ("We discretion, 1234-35 believe that fac solely subpoena, for abuse of process being tors such as the nature of owed to the lower much deference authority.”). composed, length court’s which lists are obtaining other means of the desired infor- case, however, In

mation. this the U.S.

Attorney’s repeatedly Office sub- served enforced,

poenas that were never and it insist-upon

failed to authentication from a result,

custodian of records. As a upon

District Court found that the burden unreasonable, was I and can- disagree. America,

UNITED STATES of

SAU HUNG YEUNG Fuk a/k/a Hung Hung

Chao Sau

Yeung, Appellant. 99-2040,

Nos. 99-2048. Appeals, States Court of

Third Circuit.

Argued Oct. 2000.

Filed Feb. McColgin, Argued,

David L. Defender Philadelphia, Association of Federal Court Division, Philadelphia, Pennsylvania, At- torneys for Appellant.

Case Details

Case Name: Impounded

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 20, 2001

Citation: 241 F.3d 308

Docket Number: 00-5186

Court Abbreviation: 3rd Cir.