UNITED STATES of America, Appellee, v. Ernesto ORTIZ-MARTINEZ, Appellant.
No. 76-3583
United States Court of Appeals, Ninth Circuit
July 13, 1977
However, that small difference aside, I wholly disagree with the majority‘s conclusion that on this record the attorney-client privilege does not operate to shield the summaries from production and disclosure.
The attorney-client privilege, as I understand it, is that of the client and is intended to protect from public disclosure confidential communications he makes to his attorney in connectiоn with legal matters. Necessarily, the privilege is not narrowly applied, for it would be a poor thing indeed if an attorney could be compelled to disclose the advice given his client in response to such a communication, for the essence of the communication would necessarily inhere in the response and be fairly deducible from it.
Here we are not concerned with a recalcitrant attorney-witness but with documents preparеd by the attorney. If the issue were as the majority postulates, simply “whether summaries of a client‘s business transactions with third persons compiled by an attorney from unprivileged facts are entitled to the protection of the privilege,” I would certainly join in voting to affirm. But the record does not provide such an easy springboard. The summaries are constituted of a melange of facts. Appellant testified before the district court that the information from which the documents were compiled was derived from manifold sources: from communications by the client, from co-counsel, from public records, and in part from calculations made by counsel on the basis of such comрosite information and not reflected in any other document. The documents sought by the government are thus amalgams as far as the source of their content is concerned: in part derived from communications from the client intended to be confidential, in part from public, non-confidential sources.
Of course, as the majority points out, it is not enough that an experienced tax planner might be able to “glean from the summaries sufficient information tо enable him to understand the general tenor of the tax advice given by appellant.” If that were the extent of the deduction, then the privilege, being that of the client, would not be violated. But I suggest the “experienced tax planner” could most likely deduce much more. Advice in the abstract in tax matters is not the norm. It most generally is based upon specific information.
In my view, a document need not, as the majority declares, “irresistibly” disclose a cоnfidential communication in order to be protected by the privilege; if it is such as to reasonably permit such a communication to be deduced, I would honor the privilege and protect the client.
I would reverse.
John P. Boyl, Asst. U. S. Atty., San Diego, Cal., on the brief, Terry J. Knoepp, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before HUFSTEDLER, GOODWIN and ANDERSON, Circuit Judges.
GOODWIN, Circuit Judge:
Ernesto Ortiz-Martinez, an alien, was convicted of violating
In 1973 Ortiz-Martinez was convicted of entеring the United States in violation of
Congress may authorize cumulative sentences for a single act that violates more than one statute when the offenses created by the statutes are not identical. United States v. Clements, 471 F.2d 1253, 1254 (9th Cir. 1972); cf. Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Howеver, in enacting statutes that are not identical but are closely related, Congress may unintentionally create liability for cumulative punishment on the part of an individual whose conduct constitutes only one illegal transactiоn. See United States v. Clements, supra; Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976).
This court has held that “[u]nless we can find from the face of the Act or from its legislative history a clear indication that Congress intended to authorize multiple punishments for a single transaction, we are obliged to construe the Act against the harsher penalties that result from cumulative punishments * * *.” United States v. Clements, 471 F.2d at 1254.
As in Clements, we find no clear indication from the face of the statutes here in question that Congress intended to authorize cumulative punishment. Sections 1325 (felony) and 1326 both authоrize the same maximum sentence of two years. However, in authorizing punishment for second-offender aliens, Congress may have unintentionally provided for cumulative punishment of the alien who violates the two statutes in the same trаnsaction. An alien may violate § 1326 without violating § 1325 (felony) by reentering the United States without consent after being arrested or excluded for any act other than a violation of § 1325. But no one has suggested to us how an alien who has been convicted of violating § 1325 and deported may violate § 1326 without also violating § 1325 a second time.
If Congress had intended to authorize pyramiding of punishment of the small group of illegal aliens who had previously been deported fоr violating § 1325, it could have explicitly described this group and authorized a maximum sentence of four years. Congress did not do this and has provided nothing on the face of the statute which would indicate a clear intent to impose cumulative punishment.
An exhaustive reading of the congressional debate indicates that Congress was deeply concerned with many facets of the Immigration and Nationality Act of June 27, 1952, but §§ 1325 and 1326 were not among the debated sections. 98 Cong.Rec. 4301-4321; 4399-4416; 4422-4444; 5088-5115; 5149-5181; 5209-5240; 5326-5334; 5408-5443; 5603-5631; 5756-5804; 7016-7019; 8253-8268 (1952).
The House Report contains only this brief description of the sections:
“In addition to the foregoing, criminal sanctions are provided for entry of an alien at an improper time or place, for misreprеsentation and concealment of facts, for reentry of certain deported aliens, for aiding and assisting subversive aliens to enter the United States, and for importation of aliens for immoral purposes.” 1952 U.S.Code Cong. & Admin. News p. 1724.
Thus, the lеgislative history expresses no clear indication of congressional intent to authorize cumulative punishment.
In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the Supreme Court found that because Congress had enacted three separate statutes over a period of many years in order to prevent narcotics abuse as new manifestations of
Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), expressed a policy of not attributing to Congress an intent to punish more severely than the statutory scheme cleаrly indicates. See also Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). Furthermore, while we recognize that the Clements case involved a different statute than those interpreted here, we believe that the principle of Clements militates against breaking this essentially unitary transaction into its component parts in order tо exact consecutive sentences.
The sentence is vacated and the cause is remanded for resentencing as a single offense.
J. BLAINE ANDERSON, Circuit Judge, dissenting:
I do not believe United States v. Clements, 471 F.2d 1253 (9th Cir. 1972), and the cases and principles reviewed therein dictate the conсlusion reached by my colleagues. I respectfully dissent.
As the majority candidly notes, the facts in Clements can be distinguished from those present in this case. As stated in Clements and many other cases, statutes are not identical where a different set of ultimate facts must be proven in order to obtain a conviction on each count. Sections 1325 and 1326 of
These statutes, when read in context with the legislative history (1952 U.S.Code Cong. & Admin.News, p. 1724) evince a strong policy of Congress to deal separately (even harshly) with all conceivable avenues of circumvention of the immigration laws. In short, Congress was plugging “loopholes” and screwing the “criminal machinery—detection, prosecution and punishment—tighter and tighter.” Gore v. United States, 357 U.S. 386, 390, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405 (1958). This it had a right to do without violating the Fifth Amendment.
I would affirm the District Court.