Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 24-CR-20255-WPD/HUNT UNITED STATES OF AMERICA,
vs.
PATRICK BOYD
and CHARLES
BOYD, /
ORDER DENYING, WITHOUT PREJUDICE, MOTION FOR
AUTHORIZATION TO RELEASE MATERIAL SUBJECT TO THE CRIME-FRAUD EXCEPTION
THIS CAUSE is before the Court on the Government’s Motion for Authorization to Release Material Subject to the Crime-Fraud Exception (the “Motion”) [DE 72] filed herein on June 20, 2025. The Court has reviewed the Motion, Defendants’ Response [DE 83], and the Government’s Reply [DE 84], both filed on July 7, 2025. The Court has also conducted an in- camera review of the Filter Team’s Ex Parte Supplemental Submission in Support of Motion for Authorization to Release Material Subject to the Crime-Fraud Exception [DE 74], the attached representative sample of email correspondence, and the outstanding materials filed conventionally at [DE 82]. [1] On July 7, 2025, the Court held a hearing on the Government’s Motion and has considered the Government and Defendants’ arguments [DE 85]. The Court is fully advised.
I. BACKGROUND
The eight-count indictment alleges, inter alia , as follows. Defendants Patrick Boyd and Charles Boyd (“Defendants”) were the owners of Safe Chain Solutions LLC (“Safe Chain”), a wholesale distributor of pharmaceutical products. Between April 2020 and August 2021, Patrick Boyd, Charles Boyd, and Adam Brosius [2] carried out a nationwide prescription drug diversion scheme by purchasing more than 90 million dollars of heavily discounted and diverted HIV prescription drugs from at least five black-market suppliers. [DE 10]. The Defendants subsequently sold these diverted HIV drugs to pharmacies throughout the country, along with falsified paperwork designed to make it appear as though the drugs had been acquired legitimately. Safe Chain pharmacy customers, in turn, dispensed the diverted HIV drugs to patients and billed health insurers for the diverted and non-reimbursable drugs. On numerous occasions, the bottles of purported HIV medication contained different drugs entirely.
At issue here is whether Defendants’ communications with their attorneys made during the time of the alleged conspiracy are subject to the crime-fraud exception to the attorney-client privilege. The Government obtained these communications because prior to this instant criminal action, Gilead Sciences, Inc. (“Gilead”) brought a civil action against Safe Chain under the Lanham Act in the Eastern District of New York. As part of that action, in July of 2021, Gilead sought and obtained a seizure order permitting Gilead to search Safe Chain’s offices. Gilead conducted the search and later handed over the materials to the Government for the purpose of this instant action.
The Government used a “Filter Team” to screen for potentially privileged materials using the Parties’ agreed-upon filter protocol. The Filter Team handed over non-privileged records to the Prosecution Team, the Government attorneys responsible for prosecuting the case. The Prosecution Team now moves for a finding that the crime-fraud exception applies to communications Defendants and other Safe Chain personnel had with attorneys at the law firm Frier Levitt during the time of the alleged conspiracy.
The Prosecution Team has not directly reviewed the possibly privileged documents it asks this Court to release. But the Filter Team has filed, under seal, thirteen representative sample communications under seal for this Court’s review. [DE 74]. Upon the Court’s Order, the Filter team submitted the remaining 1,354 documents via conventional filling. [DE 82]. The Court has had the opportunity to review these documents. Upon careful consideration, the Court finds they are protected by the attorney-client privileged and are not subject to the crime-fraud exception.
II. DISCUSSION
“The attorney-client privilege attaches, of course, to confidential communications between
an attorney and client for the purposes of securing legal advice or assistance.”
Drummond Co.,
Inc. v. Conrad & Scherer, LLP
, 885 F.3d 1324, 1334 (11th Cir. 2018) (citation omitted). The
purpose of the attorney-client privilege is to “encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the observance of law
and administration of justice.”
Upjohn Co. v. United States
,
a. Whether the Government made prima facie showing that Defendants engaged in fraudulent conduct
In support of this first prong, the Government relies on the indictment by which the Grand Jury determined probable cause existed to charge Defendants with an eight-count indictment alleging a fraudulent scheme. In response, Defendants argue this fact alone “does not establish the necessary prima facie showing,” without citing to any supporting case law. See [DE 83] p. 15.
Recently, Chief Judge Altonaga reasoned that “for crime-fraud purposes, an ‘indictment
provides a reasonable basis to believe that [a defendant] was engaged in criminal or fraudulent
activity.’”
United States v. Stein
, No. 21-20321-CR,
b. Whether Defendants obtained assistance of counsel in furtherance of the criminal or fraudulent activity
“The second prong is satisfied by a showing that the communication is related to the
criminal or fraudulent activity established under the first prong.”
In re Grand Jury Investigation
,
842 F.2d 1223, 1227 (11th Cir. 1987). While “[c]ourts have enunciated slightly different
formulations for the degree of relatedness necessary to meet that standard,” the “different
formulations share a common purpose-identifying communications that should not be privileged
because they were used to further a crime or a fraud.”
Id.
The Court’s determination on this prong
must “take into account that the government does not know precisely what the material will reveal
or how useful it will be.”
Id.
(citing
Sealed Case I,
In this case, without having seen the materials in question, the Prosecution Team argues, based on Defendants’ sworn deposition testimony from preceding civil actions, that “when pressed on the illegal nature of their operations, the Defendants used the attorney-client privilege as a smokescreen to maintain the facial legitimacy of their scheme.” Further, “each time the Defendants learned of the illicit nature of the HIV drugs supplied by their black-market suppliers, they contacted counsel and, in essence, used the attorney-client privilege to shield their criminal conduct from disclosure.” The Prosecution Team points to several episodes in the deposition testimony during which Patrick and Charles Boyd were questioned about their supplier’s (Boulevard’s) falsified T3/pedigrees. [3] Each time, Defendants responded with something to the effect of “I believe in all instances we contacted our legal [team], Frier Levitt.” Additionally, the Government argues the compliance director stated that Charles Boyd often overruled her objections by claiming Safe Chain was covered by legal counsel.
Defendants respond that the standard the Government advocates would expand the exception to include any instance in which a defendant, charged with fraud, consulted an attorney. Defendants further urge that there is no evidence that Defendants used counsel as a façade to conceal illegal activity. Defendants also take the position that the motion is untimely, but because the Court resolves this Motion on other grounds, we decline to consider this point.
At the outset, the Court notes that invoking the attorney-client privilege in response to
questioning does not itself create a presumption that the conversations with counsel were in
furtherance of fraud. Such an application would subvert the intention of the privilege.
See Upjohn
Co. v. United States
,
While the Court acknowledges that “[t]he privilege is the client’s, so it is the client’s
knowledge and intentions that are of paramount concern to the application of the crime-fraud
exception”
D.O.T. Connectors, Inc. v. J.B. Nottingham & Co.
, No. 4:99CV311-WS, 2001 WL
34104927, at *1 (N.D. Fla. Jan. 23, 2001), the documents at issue do not indicate Defendants’
intent to use their counsel in furtherance of any alleged illegal activity. Safe Chain employees
treated their attorneys the way any business would. There is no indication from the email
communications that the attorney-client relationship devolved into a mutual conspiracy in which
either or both sides sought to “further” any alleged criminal or fraudulent activity. In addition,
while true that “the attorney need know nothing about the client’s ongoing or planned illicit activity
for the exception to apply,”
see id.
, the Court notes that Frier Levitt attorneys behaved as any
attorney would, providing advice on drafting email responses to product complaints. Furthermore,
the Court notes that Frier-Levitt attorneys were in a continuing relationship with Safe Chain that
dated back to 2018, prior to the period of the alleged conspiracy. This factor weighs against
applying the crime-fraud exception.
Compare United States v. Cleckler,
Accordingly, the Court finds the crime-fraud exception does not apply to the privileged materials here. To find otherwise would collapse the two prongs of the crime-fraud exception into a single inquiry of whether defendants were engaged in criminal or fraudulent activity and then consulted an attorney during the time of that alleged activity.
c. Advice of counsel and good faith defenses During the hearing, the Court asked defense counsel whether Defendants intend to raise good faith or reliance on counsel affirmative defenses. Defense counsel stated it could not provide an answer until the privilege log was completed on July 15, the agreed upon date for completing the privilege log. If Defendants decide to raise either of these defenses, it is possible the Court will release materials at issue to the Prosecution Team regardless of this Court’s determination as to the crime-fraud exception. See, e.g. , Frontier Refining, Inc. v. Gorman–Rupp Co., Inc ., 136 F.3d 695, 704 (10th Cir. 1998)) (“a litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.”). While the advice-of-counsel defense is not one of the defenses that must be raised before trial under rule 12(b)(3) of the Federal Rules of Criminal Procedure, raising these defenses sooner rather than later mitigates the possibility that the Court will need to consider postponing the trial or taking a recess during the trial to allow the Prosecution Team to review the documents at issue.
III. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. At this juncture, the Government’s Motion [DE 72] is hereby DENIED WITHOUT PREJUDICE to the Government renewing if Defendants raise the defense of good faith or advice of counsel.
2. Unless and until defense counsel notifies the Court of its intent to raise the good faith or advice of counsel defense, the hearing set for July 16, 2025, at 1:15 PM is CANCELLED . DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 10 th day of July, 2025. Copies to:
Counsel of record
Notes
[1] The Court finds that the Government presented sufficient evidence in its Motion for the Court to conclude
that an
in camera
review of the emails could yield evidence that the crime-fraud exception applied.
See
United States v. Zolin
,
[2] Defendant Adam Brosius pled guilty on April 18, 2025, to Count IV of the indictment, conspiracy to commit wire fraud. [DE 66].
[3] T3s, or pedigrees, are documents required to accompany the wholesale distribution of prescription drugs and consist of transaction information, transaction history, and a transaction statement. See Indictment [DE 10] ¶ 2.