*3 Harvey. represent- Mark and have Moffitt MURNAGHAN, Before SPROUSE and Harvey grand ed throughout jury pro- ERVIN, Judges. Circuit ceedings prior prosecutions and criminal ERVIN, Judge: subject which grand Circuit are also the jury’s investigation. appeal question This raises the whether 1981, the district quashed 4, court have should On Mark November and Moffitt subpoena issued to an at- filed a quash motion to in the torney representing appellant, Leon D. United States District Court the East- Harvey, target who is of an ongoing Virginia ground ern District of on the grand jury investigation. In the the subpoena required privi- motion to disclosure of quash denied, leged court Harvey representa- district their communications in argues if his tion Harvey. forced to of Mr. The court denied both appear jury, before quash his sixth motion to and another motion amendment to choose his own attor- Mr. Moffitt to intervene behalf of Har- ney will infringed pro- vey.1 granted subsequently This court Har- tected the attorney-client privilege vey’s directing will writ of mandamus the dis- be revealed. We believe that in permit Harvey this situa- trict court to to intervene in hearing, longer At this Moffitt was withdrawn and is no at issue. subpoena may appeal stayed quash. motion to This court also denial appearance before to quash resisting
Mr.' Mark’s
without first
motion
Harvey’s
a decision on
motion
jury pending
being
contempt.
found in
hearing
quash.
States,
before
district
At
Cobbledick v. United
23,1981, Harvey argued
(1940).
court on November
sion circuits and documents hold identical interests inspection. camera supporting appeal the immediate rule in support allowing appeal Perlman
II. case. challenges first III. appealability Harvey’s denial of motion to quash directed general, attorney. his Generally, protects one served privilege with a from disclosure communi product privilegeapplies holding Harvey’s on whether the work 2. Because our favor is attorney privilege based on the client and his in this case. interests, sixth we decline to rule amendment only lias attorney disclosed client to his cations from a concerning legal possible drug confidence and advice relates to tax fraud and of- attorney. Wigmore, argument from the See fenses and indicated-in oral Evidence, (McNaughton subpoenaed might 2292 at 554 Rev. documents be used as § 1961). Payment expenses gen- prosecu- of fees and a basis for a net worth tax evasion erally privileged sketchy is not information because With such tion.3 disclosure of the payments ordinarily not communi- purposes such for which the documents are articulate, purpose obtaining sought, Harvey cations made for the is unable to Davis, discern, legal advice. this court is unable to whether dis- implicate Cf. Nation- closure of the documents would Harvey, activity al Labor Relations Board v. 349 him in the criminal for which the 1965) (dicta) (the Furthermore, representation sought. F.2d 900 fact of was employment retainer and terms of ordinari- the district court knows more than unless Hironimus, privileged); Behrens v. ly government’s purposes we do about the 1948) (“[T]he documents, seeking would be in no position privilege existence the relation of better to rule on the issue communication.”) privileged client is not a ruling if we were to remand this case for the documents item item. Until exception An privilege to the no government discloses the relevance of the recognized person rule is “where the invok subpoenaed grand jury’s documents to the ing privilege strong can show that a investigation, proper ruling privilege on the probability exists that disclosure such *5 issue cannot be made. implicate would that client in only government Not has the refused to very activity legal the criminal for which reveal information for the court sought.” advice was United States v. privi- to attorney-client decide whether the Hodge Zweig, (9th and F.2d case, lege applies in this this im- 1977). Application privilege of these plicates Harvey’s right constitutional rules, course, particular of turns on the counsel of his choice. When a is Jury facts of the ease. In re Grand Pro against attorney ongoing issued an in an Jones, ceedings v. attorney-client relationship, attorney the Koerner, Baird v. F.2d placed position well be in the of becom- 1960). In rule the order to ing against risking a witness his client or case, however, privilege issue in the contempt. strong In either there is a court must what relevance the know re possibility wedge that a will be driven be- quested grand jury have to the documents attorney tween the the and the client and investigation. the Unless nature of the in relationship destroyed.4 will be im- These vestigation disclosed, is a court cannot de private portant interests should not be sac- termine whether disclosure of the docu public rificed to the furthered interest implicate ments “would the client in the grand the jury’s investigation un- criminal very legal criminal act for which advice is showing less preliminary some is made sought.” government. government consistently has re regarding fused reveal details recognize normally We a sub purpose grand jury investigation. It poena presumed regular, is to be and that tempt may totally destroy government 3. When asked if had an “ex- pectation” finding incriminating relationship. 17(g). of evidence for Fed.R.Crim.P. If the attor- prosecution simply a tax ney appears evasion or complies a mere with the and “hope,” government’s argument doors, jury counsel at oral grand before the behind closed responded they “hope” finding had a of chilling substantial effect on truthful communi- such material. attorney cations from the client to the thereaft- likely, especially er if is would be the client attorney If the resists the and is indicted. contempt, punishment found in for con- continuing to has of receive the subpoenaed party the burden assistance of coun- showing that the information already he purposes sel has retained for of privileged grand that there has been an abuse jury investigation. The interests See, grand jury process. e.g., Bever- maintaining proper attorney-client of re- States, ly lationship v. United F.2d protecting the confidences of 1972).5 attorney target Where the for relationship are similar to the sixth however, subpoenaed, right amendment to effective assistance of attorney-client privilege considerations and counsel and fundamental to our adversarial sixth interests system justice. balancing amendment arise automati- In public cally preliminary showing and a must be interest in investigation of crimi- effective government activity by juries before the attor- against nal ney appear can private be forced before the preserving substantial interests grand jury. proper on-going attorney-client relationship protecting confidential communica- subpoenas jury Grand are issued tions, it not an unreasonable burden pro prior approval. forma with no court As require prelimi- to make a they such are instrumentalities the Unit nary showing by affidavit. Attorney’s although ed States office issued under the district court’s name and for IV. grand jury. though general Even In determining what need assistance of counsel at the present preliminary showing, must in its great is not as as the need for counsel provided guidance by the third circuit in trial, after indictment a witness in (Schofield), Jury Proceedings Grand grand jury experienced room faces the ease, In that prosecution counsel of many thus in potential petitioner, target who was a the right circuits has to consult with his grand jury investigation, con- was held in outside the room tempt refusing comply with a protect order to his fifth amendment jury subpoena directing provide her against self-incrimination. See United handwriting samples, photographs, and fin- Mandujano, 564, 605-06, *6 gerprints. In reversing the conviction for 1768, 1790-91, 96 S.Ct. 48 212 L.Ed.2d contempt, the court established the broad (1976) (Brennan, J., concurring) (citing government rule that the is not entitled to George, United v. 310, States 444 F.2d 315 have a subpoena enforced unless it makes a 1971); Weinberg, United v. States preliminary showing by affidavit that the 743, 439 745 United sought items investiga- “relevant 821, States v. Capaldo, 824 being tion conducted the and 989, cert. denied 394 U.S. properly jurisdiction, within its and is not 1476, 764)). 22 Though L.Ed.2d an unin sought primarily purpose.” for another Id. grand dicted jury witness’ sixth amendment at 93. to counsel does not attach at the grand jury stage, the witness nonetheless is requirement three-pronged This “faced with the prosecutorial designed forces or of that private insure before a ganized society and immersed in the intrica citizen be testify can forced to a before of procedural cies substantive and grand criminal the jury, Attorney United has States Illinois, law.” Kirby 682,689, 406 U.S. 92 grounds subpoena to believe proper. the 1877, 1882, S.Ct. (1972). 32 requirement We note that the relevance of Thus, even though the witness not does the appropriate Schofield standard is in this have the right to appointed have counsel case to determine whether documents the him, for has he a substantial interest attorney-client privilege. fall under the court, upon 5. We oppressive.” also note the that district unreasonable or Fed.R.Crim.P. motion, “may quash 17(c). modify the [requesting compliance if documents] be would
1011 however, get grand jury investigation subpoena, also risks the de- This important rela- sixth ongoing attorney- struction of an amendment and tionship. balancing public the interest in privilege In client issues are raised. jury with informa-
providing against private
tion inter- may it need V. impor- maintaining est of confidential and We are convinced that our holding professional relationship, tant not in this ease is not contrary principles to the enough that be to be shown by the Supreme laid down Court United regular. grand jury subpoena un- When a Dionisio, States v. U.S. S.Ct. ongoing attorney-client dermines an rela- (1973), 35 L.Ed.2d and United States v. tionship, Attorney should United Mara, S.Ct. L.Ed.2d also important show affidavit an need6 Dionisio, (1973). group of Thus, for sought. this jury they witnesses were that advised were situation, must targets investigation jury of preliminary showing include in his a demon- subpoenaed transcript were to read the stration is rele- that the information intercepted lawfully wire conversation into vant to and for an needed recording device. Dionisio refused to being grand jury. conducted comply grounds agree We court in procedure with thé his fourth Schofield violated grand jury secrecy requirement Fed. rights. fifth amendment At enforce gener- 6(e) R.Crim.P. not hearing, does necessitate a ment stated that government’s al requiring rule threefold only the statements were used to be preliminary showing be comparison made to the district determine if the wit court in We leave camera. to the district nesses was the one whose conversation was spe- court’s intercepted, discretion a determination that stated that voice ex cial emplars circumstances warrant in camera the investiga were review government’s affidavits. tion. The seventh circuit denied enforce Challenge adequacy govern- to the ment because the had not ment’s preliminary showing may showing preliminary probable made a or, See, hearing the enforcement Mississippi, as in cause. Davis v. quash subpoena. in a motion L.Ed.2d reiterate, however, reversed, We holding Supreme we do Court adopt the rule that preliminary prohibition against Schofield amendment fourth showing every grand jury made for must be search unreasonable and seizure does not subpoena.7 only We hold require preliminary showing the threefold before a preliminary showing by (including grand affidavit can be issued for the *7 showing needed) a that the purpose obtaining testimony information is is or of voice or required subpoena handwriting exemplars. when a is issued to an The issue in Unit Mara, who been tar- supra, has retained the ed was similar.8 necessary withholding judgment 6. We do not think it 7. In to determine on the issue wheth- point showing preliminary showing what would constitute a of er a be must made in important case, requirements every need. for such we understand that other circuits vary showing according See, a adopt e.g., will to the circum- to have declined such a rule. however, note, Liberatore, (2d stances of each case. We do In re 574 F.2d 78 In inquiries prosecution Jury (McLean), that Investigation there are two the re Grand F.2d making showing must address when a of need. First, sought necessary is the information or important grand jury investigation? case, government sought to the 8. In that the enforce- Second, subpoenaed attorney subpoena handwriting requesting is the the best ment of a ex- showing showing probable emplars making source for the information? A without a of be information cannot obtained from anoth- cause. The court held that enforcement of the would, course, to, important er source but would not an unreasonable constitute for, did, necessarily government in- conclusive the second seizure. The how- search and quiry. ever, supply showing exemp- affidavits that the simply “fishing it on expedition.” is a were based on consti- For Dionisio and Mara stated, of the challenges to enforcement the reasons the United tutional States Attor- convinced, however, required ney to subpoenas. pre- We make described liminary showing acquire in to showing we now re- order preliminary supervisory subpoenaed documents from Mr. Marks. exercise of our quire proper is a Accordingly, Harvey’s quash motion to justice power over the administration of granted district court’s enforce have refused to this circuit. Courts of such denial motion is variety of nonconstitutional subpoenas for a Jury Proceedings re reasons. In Grand See REVERSED. (Schofield), at 91. This court has supra, over the conduct of supervisory power MURNAGHAN, Judge, Circuit dissent- grand jury proceedings within this circuit ing: to fashion to fur- power and has the rules myself Regrettably, I find unable to con- justice
ther
when
administration
principal proposition
cur in the
for which
necessary.
such rules are
McNabb v.
See
majority panel opinion
Despite
stands.
S.,
340-41,
U.
single
decision in the Third Circuit Court
612-13,
(1943);
Fay
87 L.Ed.
v. New
Proceedings
Appeals,
Jury
In re Grand
York,
261, 297,
1613, 1632,
(Schofield),
VI. (McLean), 1977) (“In any asserting has the absence of witness purposes failed to disclose the prosecutorial harassment or misuse of the jury investigation, system, impose relevance of the in upon will not sought by formation of Mr. any pre- or the courts district Marks, important liminary requirements infor impede need such which would mation. has grand jury’s investigative powers.”); Neither at In tempted to believing Proceedings dissuade us from Jury (Hergenroeder), re Grand Special February Jury E.g., Iars were essential and Grand jury investigation 1977) (“A (Lopez), and were to be used for *8 purpose. limited jury duty grand a is not under to disclose rea seeks.”); for the it In re Ber sons any 179, (10th ry, Schofield rule “has not seri- caused F.2d 184 521 cert. disruption grand jury proceedings” ous denied, 928, 276, of in 46 L.Ed.2d Hearings the third circuit. on 94 (1975) (“Relevancy materiality H.R. Before 256 and are not Immigration, the Sub-committee Citizen- enforcement.”). pertinent to ship, and Law International of the House Com- Judiciary, Cong., mittee in the 95th 1st Sess. (1977). 1977) (“In ing a blanket rule that view the burden of 555 F.2d show- government ing good generally cause must be presumption that the met of the the before it ever law, inject can the see no reason to obeys lawyer a an on-going representa- who has investigations jury the grand into routine relationship grand jury target. tional with a upon district courts delay imposition and opened up by will be a rule institution- present stage, Harvey’s At the attorney affidavits.”). disclaiming these alizing in stands the same shoes as banker ledger stockbroker ordinary whose of busi is, that, emphatically, say to That subpoenaed. Simply by ness transactions prospective the witness in fact as- where ledger transactions, maintaining a to record going sumes the burdens of forward and of not, rule, general an under the has persuasion prima and establishes facie that engaged privileged in communications. testimony compelled, the should not be the Rather, privileged the are communications produced. evidence nevertheless It must be person only invoking “where the privi the all comes down to the choice as to which can lege strong probability show that a way run. I presumption the should cannot of exists disclosure such information accept presumption irregulari- of blanket implicate that the very would client in crim ty, resulting proof of and rule activity legal inal for which advice was probable precede production cause of must sought.” v. Hodge any grand jury. subpoenaed by evidence Zweig, 548 F.2d course, panel Of the members of ma- also, Jury Proceedings e.g., In re Grand See jority purport to restrict the decision to (Jones), us, case in which the before one Investigation (Tinari), Jury Grand to issues counsel for someone who is a tar- 1980) (per curiam), cert. However, get inquiry. of jury once denied, accepted respect such a doctrine is with to showing Since no has lawyers, long it will not be well- before been disclosure of documents equality require notions will founded of implicate very in would client “the to all persons extension of a doctrine which legal activity which was criminal advice attorneys. is ill-conceived even if to limited sought,” the documents are no different It speak not do pride equali- does with of ledger of a than sheets or stockbro banker ty law, creating under at the same time attorney, ker. If like other preferential or “ennobled” status for law- witness, shows that the materials yers. privileged, jury’s or overcomes the payments Here we are with confronted presumption regularity, of then he is enti receipts lawyer with connection quashed. tled to have the his representation grand jury’s tar- simply concept To me distorts get, Leon Harvey. fool- process put lawyer the democratic view, ishly, strategic point from a has separate category, and free him of a objectives conceal for the responsibility which must be assumed subpoena, and it well the dis- argument other citizens. The that the rela- judge may trict have occasion conclude tionship with client in so itself is prospective that the witness has carried the require produce tender that him to requisite subpoena, burden to show that the subpoenaed unduly materials would risk di- item-by-item considered on an or category- attorney-client privilege lution of the basis, by-category quashed, should be accused to have However, part. whole inor it is in the trial assistance of for his counsel defense has appellate court and not level that ring. A hollow client who loses faith in his pertinent factual issues inquiries of that lawyer lawyer complies because the with type should humbly law, be resolved. I suggest as banker or a must stockbroker mistake, law, that we invading make a bad has comply adopted an unrea- province court, of the district stance. establish- sonable *9 witness, hearings where to elicit on the as I informa-
If the burden is
be, we
not quash
submit
should
Specifically,
should
tion.
order
in
to determine the
subpoena,
rather
should affirm
but
may
nature of the
he
wish to
action, by
which it care-
district court’s
hear
testimony from
Assistant United
fully
the reluctant
left available to
witness
Attorney
regarding
the matter.
respect
opportunity,
to each docu-
with
6(e)(3)(C)(i)
per-
Fed.R.Crim.P.
specifically
documents,
category
ment or
to assert a mits
occurring
disclosure of matters
before
privilege,
put
grounds sup-
to
forward
grand jury
a
by
“when so directed
a court
porting
privilege,
ruling
and to obtain a
preliminary
judi-
to or
connection with
in
a
any compul-
from the district court before
cial proceedings,”
provides:
sion to turn
document or
over the
docu-
If
disclosure
the court orders
of matters
Assuming
ments becomes effective.
occurring
grand jury,
before
the dis-
production
district court
concludes
manner,
closure
made in such
shall be
at
compelled,
not be
no
should
material
time,
such
such
and under
conditions as
however,
problem
If,
'exists.
the district
may
the court
direct.
court determines
the material
should
Moreover,
disclosed,
in
long
be
there is available an immediate
courts have
held that
camera
appeal pursuant
1826(b),2
hearings
appropriate
to
U.S.C.
an
§
and,
appropriate,
stay
where
of incarcera-
resolving disputed
efficacious means of
is-
tion,
prospective
should the
States,
witness elect to
Kerr v. United
privilege.
sues of
position
stand on his
and to draw a con-
394, 405-06,
2119, 2125,
426 U.S.
96 S.Ct.
tempt citation.3
McLawhorn v. North
(1976);
L.Ed.2d 725
Carolina,
5-6 n.13
panel majority’s
concern that
Helms,
Halkin v.
5-7
overstepping
its bounds can
(D.C.Cir.1978).
Stonewalling
by
assuaged
be
fundamentally
without
alter-
ing
proceedings might
in those
grand jury proceedings.
burdens in
At
proceeding,
properly
by
an
enforcement
a district
considered
the district court
judge should feel free to conduct in
camera
ruling
in
on
of privilege.
the claim
ing
1826(b) provides
part:
assuming
2. 28
that to be the
§
further
U.S.C.
Any
persuaded
appeal
that he cannot be located and
an order
or
from
of confinement
court,
compelled
[governing
appear
under
this section
to
before the
recalcitrant
district
disposed
obviously
lawyer
point
shall be
witnesses]
of as
some
is free to
practicable,
thirty
soon
required
as
but not later than
merely
determine how
he is
much
not
days
appeal.
filing
from the
of such
represent
ability
to
to the best
client
of his
willing
but to substitute himself for-a client not
Appellant
express
curiae
and amici
concern
contempt
himself to sustain the
citation neces-
lawyer
compelled
that a
should be
to risk con-
sary
appel-
to have the issue reviewed
tempt
and,
and incarceration for a client
on the
late court.
coin,
other side of the
concern for the client
Moreover,
actuality of
severe inconven
lawyer,
validity
whose
of'the
confident
lawyer
magnified unduly.
ience to the
position
unwilling
or
event to lan-
ap
guish
Whenever the
pealed,
of a
order
district court is
vile, proceeds
comply
in durance
to
ruling
and the
protest
correctness
over the
of the client.
appears
substantially
problem
well,
district
doubt,
however,
court
to be
ap-
be more
parent
stay
granted
Harvey
of incarceration
than
either
real. Leon
has himself
judge
pending appeal
scope
the district
intervened.
us
It is well within the
of alter-
1826(b);
judge,
natives
available.
Jury
§
available to
district
Cf. 28 U.S.C.
should he
In Grand
(Horak),
privilege
particular
Proceedings
find a claim of
as to a
which adhere rela- Rather,
tionship. I do it neces- not believe
sary depart radically from settled
jury procedures. I dissent. Therefore COMPANY,
HOGG’S OYSTER
INC., Appellee, America,
UNITED STATES of
Appellant.
No. 81-2104. Appeals,
United States Court of
Fourth Circuit.
Argued March 1982. April
Decided