Case Information
*1 Before W OOD , Chief Judge , and B AUER and H AMILTON , Circuit Judges .
H AMILTON ,
Circuit Judge
. Dеborah Ahmad Bey appeals
her 2010 conviction for failing to surrender to prison authori-
ties. She contends her conviction wаs based on evidence of a
privileged and inadmissible attorney-client communication
telling her when she had been ordered to report for prison.
*2
We have not addressed this issue in a precedential opinion
before. We follow our colleagues in other circuits and hold
that the lawyer’s communication of the defendant’s surren-
der date was not a privileged communication. See, e.g.,
Unit-
ed States v. Gray
, 876 F.2d 1411, 1415 (9th Cir. 1989);
United
States v. Innella
,
Factual and Procedural Background
This appeal has its roots in Bey’s 2006 conviction for mak-
ing false statements in a bankruptcy proceeding. Bey re-
ceived a below-guidelines sentence of three months in pris-
on. She appealed that conviction, prompting а cross-appeal
by the government. We affirmed her conviction but agreed
with the government that the sentence was toо low and re-
manded for resentencing. See
United States v. Bey
, 244 Fed.
App’x 57, 59 (7th Cir. 2007). The Supreme Court granted cer-
tiorari and remanded for reconsideration in light of
Gall v.
United States
, 552 U.S. 38 (2007). 553 U.S. 1016 (2008). We
concluded that our earlier decision was not affected by
Gall
.
United States v. Bey
, 289 Fed. App’x 954, 955 (7th Cir. 2008),
and the Supreme Court then denied сertiorari.
When the parties returned to the district court in 2008, the court resentenced Bey to 24 months in prison. The court ordered hеr to self-surrender. The district judge twice changed Bey’s surrender date. After the second extension in October 2008, Bey’s lawyer, Kent Anderson, mаiled her a *3 one-page letter enclosing the court’s order resetting her sur- render date to December. When Bey did not surrendеr, an arrest warrant was issued. After eluding federal agents for a year, she was arrested and charged with knowingly failing to surrender to serve her sentence. See 18 U.S.C. § 3146(a)(2).
Bey moved to dismiss her indictment and to suppress evidence that attorney Anderson notified her of the Decem- ber self-surrender date because, she asserted, it was a privi- leged communication. Judge Shadur denied the motion in a concise and persuasive order explaining that a lawyer’s mes- sage telling a defendant when she must appear to сomply with a court order is not protected by the attorney client privilege. The order noted that our circuit had not decided the issue but others had, citing United States v. Kinsella , 545 F. Supp. 2d 148, 155–56 (D. Maine 2008), which collected appli- cable case law.
The parties proceeded to a bench trial before Judge Coleman. Bey appeared pro se. During the trial Bey objected to testimony from Anderson about any conversations they had and to the admission his letter to Bey in October 2008. Judge Coleman agreed with Judge Shadur on thе privilege issue and overruled the objection, allowed Anderson to give limited testimony, and after redacting part of the letter ad- mitted three sentences from it. Anderson testified that he wrote the letter on October 3, 2008 and sent it to Bey. The three admitted sentences from the letter said: “I have en- closed a copy of Judge Andersen’s order changing the date for you to report tо prison. You are now supposed to report to prison or the local Marshal’s office on December 8, 2008. *4 * * * Pleasе contact me if you have any questions or concerns regarding your appeal.” The enclosed order directed Bеy to “surrender to the institution designated by the Bureau of Prisons on December 8, 2008.”
The court convicted Bey of knowingly failing to surren- der for service of her sentence in violation of 18 U.S.C. § 3146(a)(2). The court sentenced her to 26 months in prison. Because she had already sеrved that much time, she was re- leased immediately. Bey now appeals her conviction.
Analysis
The only issue on appeal is whеther the lawyer’s letter to Bey was protected by the attorney-client privilege, so that neither it nor his testimony about the letter should have been admitted at trial. Bey correctly notes that 18 U.S.C. § 3146(a)(2) punishes only those who “knowingly” fail to surrender. Disclosure of the lеtter and related testimony, Bey concludes, unjustifiably invaded the privilege to prove a crit- ical element of her offense—knowledge of her surrender date.
Confidential communications between a client and her
lawyer for the purpose of receiving legal advice are protect-
ed by the attorney-client privilege.
United States v. Leonard-
Allen
, 739 F.3d 948, 952 (7th Cir. 2013);
United States v. BDO
Seidman
, 337 F.3d 802, 810-11 (7th Cir. 2003). This court re-
views
de novo
the scope of the attorney-client privilege.
Leon-
*5
ard-Allen
, 739 F.3d at 952;
Shaffer v. American Medical Ass’n
,
We have not previously аddressed this question, but
other circuits have held consistently that the attorney-client
privilege does not apply to communicаtions of the date that
a defendant is required to appear in court or to serve a sen-
tence. These courts reason that a lawyer’s communication to
a client of the terms of a public court order is simply not con-
fidential advice. See
United States v. Gray
,
We agree with the reasoning of our colleagues in these circuits and conclude that admitting the portion of Ander- son’s letter and his testimony authenticating it did not in- vade the attorney-client privilege. Anderson merely for- warded from the court to his client the public information in a court order. The fact that Anderson was Bey’s lawyer did not transform the transmission of this information into con- fidential legal advice.
Bey contends, though, that the second sentence of the let-
ter did more thаn just transmit an order. It admonished her
that she was “now supposed to report” to prison or the Mar-
shals office on December 8, so she contends it gave her legal
advice about the order’s meaning. See
United States v. Bauer
The government also argues that additional evidence of Bеy’s knowledge that she was a fugitive was so strong that erroneous admission of the lawyer’s letter would have been harmless. The harmless error argument is strong, but we do not reach it because there was no error.
AFFIRMED.