Lew Moy v. United States
237 F. 50
8th Cir.
1916
Check Treatment
HOOK, Circuit Judge.

Lew Moy, Sam Hee, and Hop Lee were indicted for a conspiracy to commit an offense against the United States (Penal Code, §37) by knowingly bringing and causing to be brought from Mexico by land into the United States Chinese persons not lawfully entitled to enter or remain in the latter country, and by aiding and abetting therein (23 Stat. 117, § 11). Hop Lee pleaded guilty. Jew Moy and Sam Hee were tried, convicted, and sentenced. They prosecuted this writ of error.

[1] Complaint is made of the indictment. In a case of this kind there need not be that definiteness or detail of averment necessary in a charge of’the offense,which is the subject of the conspiracy. Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545. The outlines of the plot or concert may well be as general in the minds of the conspirators as the prohibitions of the particular statute which they conspire to violate. It is said that the means to be employed are not set forth in the indictment. But the precise means may not have been a part of the concerted agreement or understanding. They may not have been predetermined, but left to the exigencies of the criminal enterprise as it progressed. It was expressly averred that the Chinese persons to be brought into the United States were not entitled to enter or to remain, that they were to be brought from Mexico and by land, and that they were to be taken to Rock Springs, Wyoming, and elsewhere in this country. The indictment was sufficient to inform defendants of the crime charged, and to protect them from a second prosecution for the same offense.

[2] It is also urged that the conspiracy was at amend the instant the Chinese whose illegal entry was procured and facilitated were brought across the international boundary, and therefore the trial court erred in admitting in evidence the subsequent acts and declarations of one conspirator against the others. This is too narrow a view of the crime charged. Successfully to consummate the unlawful introduction of the prohibited aliens required more than the mere bringing of them across the line. It was necessary to evade the immigration officials by transporting them into the interior and concealing their 'identity. The subsequent assistance by defendants to that end may well have been an essential part of the unlawful project. It is not necessary that each conspirator participate in each step or stage of the common general design. One of them may do one thing; another, another. Some may take major parts, while the participation of others may be in a minor degree. It may be said here that the evidence against the defendants was sufficient for the consideration of the jury.

[3-0] A serious question arises on the admission of the testimony of an attorney at law to conversations with defendant Sam Hee. Hee, *53who lived in Wyoming, went with an attorney of that state to attend the trial at Santa Fé, N. M. On his way he stopped to see his codefendant, Hop Lee, who lived, at Las Vegas, N. M. Hop Lee had employed a firm of attorneys at Las Vegas of whom Mr. Clark was a member. At his suggestion defendant Flee went to see Mr. Clark for the purpose of employing him as local counsel, if his Wyoming attorney, who had gone on to Santa Fé, had not already secured assistance there. After the conversations which ensued the employment was tendered, but Mr. Clark declined it. Against objections that they were privileged the trial court required Mr. Clark to testify regarding them and to narrate what Hee said. The testimony was prejudicial, not only to Hee, but also to his codefendant, Moy. Their defenses were so intricately related that injury to one necessarily injured the other. It •is unimportant that Mr. Clark, when he talked with Hee, had already decided to advise his client, Hop Lee, to plead guilty. Besides, the decision had not then been communicated to Lee, nor was Hee advised of it. Whatever was in Mr. Clark’s mind, the situation was peculiarly one inviting Hee’s trust and confidence. Mr. Clark was an attorney at law, practicing in the state where the trial was to be had. It was properly desirable for defendant Hee, who lived in a distant state, to have the aid of local counsel, especially Mr. Clark, who was already counsel for one of his codefendants. The subject of their conferences was manifestly of a character covered by the immunity from enforced disclosure. The statements made w^re not by way of confession, nor in casual discourse with an outsider. In questions of this kind consideration should be given to the attitude, the intent and belief, of the person seeking advice or assistance. For example, communications have been excluded when made to a detective who falsely pretended to be an attorney at law. People v. Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. Rep. 501. See also State v. Russell, 83 Wis. 330, 53 N. W. 441.

Communications made in good faith to an attorney at law for the purpose of obtaining his professional advice or assistance are privileged. The payment of a fee is not essential, Alexander v. United States, 138 U. S. 353, 11 Sup. Ct. 350, 34 L. Ed. 954. Nor does it matter that after the communications the attorney declines to act. Strong v. Dodds, 47 Vt. 348; Sargent v. Hampden, 38 Me. 581; Thorp v. Goewey, 85 Ill. 611; Cross v. Riggins, 50 Mo. 335; Denver Tramway Co. v. Owens, 20 Colo. 107, 36 Pac. 848. There is some diversity of opinion upon this question, but the above is better sustained by sound principle. It is in accord with the common custom of those who seek professional advice. The man who goes to the lawyer does so as a client, and the lawyer who listens to him does so professionally. The communications preliminary to actual retainer or engagement are frequently necessary, and they should be unconstrained and without apprehension of disclosure. That this should be so is of public interest, and is essential to the intelligent and honorable practice of the law. Various obstacles to a definite' contractual relation may appear from the communications—prior inconsistent duty to others, ethical professional standards, time and opportunity, disagreement as *54to compensation, and so on—but generally the preliminary conference must be had, and the disclosures made are within the spirit of the immunity. The fair and reasonable operation of the admitted general rule requires that liberality of construction.

The sentences of both Moy and Hee are reversed, and the cause is remanded for a new trial.