United States v. Gorski , 807 F.3d 451 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 14-1963
14-1964
14-2074
UNITED STATES OF AMERICA,
Appellee, Cross-Appellant,
v.
DAVID E. GORSKI,
Defendant, Appellant, Cross-Appellee,
LEGION CONSTUCTION, INC.,
Interested Party, Appellant, Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Tracy A. Miner, with whom Megan A. Siddall and Demeo LLP were
on brief, for Gorski.
Martin G. Weinberg, with whom Kimberly Homan was on brief,
for Legion Construction, Inc.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
the United States.
December 9, 2015
LYNCH, Circuit Judge. These interlocutory appeals
are from a district court order that, among other things, compels
the law firm of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
(Mintz Levin) to produce certain documents pertaining to a fraud
allegedly committed by David Gorski in his operation of Legion
Construction, Inc. (Legion). Gorski and Legion appeal the district
court's order that attorney-client privileged documents be
produced under the crime-fraud exception. The prosecution cross-
appeals the district court's decision to exclude communications
between Gorski and his personal attorney, Elizabeth Schwartz, from
the production order. We conclude that we have jurisdiction over
Legion's appeal and the prosecution's cross-appeal, but not over
Gorski's appeal. We dismiss Gorski's appeal for want of appellate
jurisdiction. We affirm the production order as to Mintz Levin.
We vacate the district court's decision to exclude Gorski's
communications with Schwartz from the production order and remand
that portion of its order.
I.
The prosecution alleges that from about late 2005 to
about November 2010, Gorski fraudulently represented to federal
government agencies that Legion was a Service-Disabled Veteran
Owned Small Business Entity (SDVOSB) in order to qualify for and
obtain government contracts.
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By statute, at least three percent of all government
contracts must go to SDVOSBs. 15 U.S.C. § 644(g)(1)(A)(ii). To
qualify as an SDVOSB, an entity must be at least fifty-one percent
owned by one or more service-disabled veterans. 13 C.F.R. § 125.9;
38 C.F.R. § 74.3. The entity must also be controlled by one or
more service-disabled veterans, meaning that both long-term
decision-making and day-to-day management are conducted by
service-disabled veterans. 13 C.F.R. § 125.10(a); 38 C.F.R.
§ 74.4(a), (c)(1). Before February 8, 2010, the service-disabled
veteran owners were not required to work full time but had to "show
sustained and significant time invested in the business." 38
C.F.R. § 74.4(c)(1) (2008). Effective February 8, 2010, the
regulations were amended to require that a service-disabled
veteran owner "work full-time in the business." 38 C.F.R.
§ 74.4(c)(1) (2010). The February 8, 2010, amendment also
eliminated the self-certification procedure that had been in
effect for SDVOSBs, replacing it with a formal verification
process. 38 C.F.R. § 74.2. The essence of the criminal case
against Gorski is that Gorski, a non-veteran, made false statements
about the ownership, operation, and control of Legion to appear to
be in compliance with the SDVOSB eligibility requirements while
retaining effective ownership and control of the company for
himself.
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The prosecution alleges the following facts. Around
late 2005, Gorski approached Veteran A, a service-disabled
veteran, to start a construction business targeting SDVOSB
contracts. Gorski told Veteran A that he wanted Veteran A's
involvement for his "veteran status." Gorski filed a certificate
of incorporation for Legion in January 2006, with Veteran A listed
as president and himself as vice president.
From January 2006 to August 2007, Veteran A was nominally
the fifty-five percent owner of Legion. In August 2007, Gorski
caused Legion to undergo a corporate restructuring in which Gorski
became a nominal forty-nine percent owner, Veteran A became a
nominal eleven percent owner, and Veteran B -- also a service-
disabled veteran -- became nominal owner of the remaining forty
percent. However, Veteran A received no compensation for the stock
that he relinquished. Meanwhile, Gorski retained effective
control of Legion by having the veterans execute demand notes
payable to Gorski and secured by their shares of Legion stock, as
well as by having them sign employment agreements that allowed
Gorski to terminate their employment with Legion for cause. Gorski
also placed his wife on Legion's payroll even though she had full-
time employment elsewhere, as a disguised method to pay himself
more money than he was paying the veterans. Throughout this time,
Legion was awarded government contracts based on representations
that it qualified as an SDVOSB.
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In late 2009, Legion retained Mintz Levin in
anticipation of the February 8, 2010, amendment in regulatory
criteria for SDVOSBs. Mintz Levin effected a corporate
restructuring under which Veteran B purchased Veteran A's
remaining stock, resulting in Veteran B nominally owning fifty-
one percent of Legion's shares and Gorski nominally owning forty-
nine percent. Although the purchase did not occur until March 23,
2010, the documents were dated "as of" February 1, 2010 -- before
the date of the regulatory amendments.
At some point, Gorski also engaged Elizabeth Schwartz,
an attorney unaffiliated with Mintz Levin, for legal advice related
to the 2010 restructuring.
On March 8, 2010, one of Legion's competitors filed a
bid protest with the U.S. Small Business Administration (SBA)
challenging Legion's SDVOSB status. The protest related to a bid
submitted by Legion on January 11, 2010. On April 5, 2010, Legion,
with the assistance of Mintz Levin, filed a response to the SBA.
The response included new corporate documents prepared by Mintz
Levin purporting to show that Legion restructured on February 1,
2010. The record supports the district court's finding that the
new corporate documents were crafted so as to make it appear that
they were signed before the date of the SBA regulatory amendments,
when they were not, and that an affidavit that flatly swore under
penalty of perjury that Veteran B purchased the stock on February
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1, 2010, was false. Further, it is plain that Gorski likely knew
that his lawyers' handiwork could lead SBA to believe that which
was false.
Between July 29, 2010, and November 19, 2010, Gorski had
discussions with Legion's accountant about circumventing the
SDVOSB regulations that require the service-disabled veteran owner
to be the company's highest paid officer. Gorski and Legion's
accountant discussed a plan under which Gorski would receive
additional, hidden compensation in a special bank account.
On October 23, 2012, Gorski was indicted for one count
of conspiracy to defraud the United States and four counts of wire
fraud, in violation of 18 U.S.C. §§ 371 and 1343.
On July 21, 2014, the prosecution issued subpoenas to
Legion and Mintz Levin under Federal Rule of Criminal Procedure
17(c). The subpoenas required the production of documents from
November 2009 to December 2010 concerning Legion's ownership and
SDVOSB eligibility; negotiations and transfers of Legion stock
involving Gorski, Veteran A, and Veteran B; and the March 2010 bid
protest filed against Legion. Mintz Levin and Legion withheld
production of certain documents on the basis of attorney-client
privilege.
On August 7, 2014, the district court granted the
prosecution's motion that the court conduct an in camera
examination to determine whether the crime-fraud exception to the
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attorney-client privilege applied. Mintz Levin and Legion
submitted thousands of pages of documents for the district court's
review. On September 4, 2014, the district court held an ex parte
hearing with defense counsel and, upon concluding that the crime-
fraud exception to the attorney-client privilege applied, ordered
that all of the contested documents be produced.
On September 8, 2014, Gorski filed an ex parte motion
for reconsideration of the September 4 order as overbroad with
respect to seven categories of documents. Also on September 8,
2014, Legion, which is not a party to the criminal case, filed a
motion to intervene and to stay the September 4 order, along with
a motion to conduct a de novo hearing on the crime-fraud exception.
The district court granted Legion's motion and, on September 11,
2014, held an ex parte hearing with counsel for Legion and Gorski.
On September 12, 2014, the district court issued an order
granting in part and denying in part the motion for
reconsideration. As an initial matter, the district court found
that all of the documents at issue were relevant and facially
privileged. The only issue was whether the crime-fraud exception
applied. The district court began its analysis by stating that it
considered the grand jury indictment of Gorski to be "conclusive
evidence" of probable cause to believe that Gorski committed a
crime or fraud. The district court then reasoned that "there is
a reasonable basis to believe that Gorski intended to, and did,
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use the services of the lawyers" in furtherance of that crime or
fraud. The district court found that it was reasonable to believe
that Gorski intended to use Mintz Levin's services to "perpetuate
[an] ongoing scheme" in which he "maintain[ed] effective ownership
and control of Legion, while maintaining its apparent status as
a[n] SDVOSB."
However, the district court granted the motion to
reconsider as to category three of the documents, which consisted
of communications between Gorski and his personal attorney,
Schwartz, in relation to the 2010 restructuring. The district
court found that although "[t]he basic intent of those
communications is arguably the same as his communications with
Mintz Levin, . . . Ms. Schwartz apparently had no role in the
submission to the SBA." The district court concluded that under
the circumstances, it would "not make the necessary finding" as to
the applicability of the crime-fraud exception. The district court
also determined, without explaining its reasoning on the record,
that the crime-fraud exception did not apply to documents in
categories one, two, five, and six of the motion for
reconsideration. The district court ordered Legion and Mintz Levin
to produce all of the contested documents not encompassed by those
categories.
Legion and Gorski filed separate notices of appeal.
Legion limited its appeal to the portion of the district court
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order requiring production of documents by Mintz Levin. The
district court has stayed its production order as to Mintz Levin
pending appeal. The district court has stayed and held in abeyance
its independent production order as to Legion, pending resolution
of this appeal as to the Mintz Levin order.
II.
"Ordinarily, litigants may not seek immediate appeal of
discovery orders because they are not final decisions and orders
of the district court." Gill v. Gulfstream Park Racing Ass'n,
Inc., 399 F.3d 391, 397 (1st Cir. 2005); see also FDIC v. Ogden
Corp., 202 F.3d 454, 458 (1st Cir. 2000). A target of a discovery
order can gain an immediate right of appeal by refusing to comply
with a discovery order, being held in contempt by the district
court, and then appealing the contempt order. Gill, 399 F.3d at
397. However, none of the parties to this appeal have been held
in contempt. Examining the alternative bases upon which the
parties claim appellate jurisdiction to challenge the discovery
order, we conclude that we do not have jurisdiction over Gorski's
appeal but that we do have jurisdiction over Legion's appeal and
the prosecution's cross-appeal.
Gorski relies solely on the collateral order doctrine as
the basis for appellate jurisdiction.1 The collateral order
1 The prosecution points out an antecedent issue
explicitly left open by the district court: whether Gorski can
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doctrine allows immediate appeal of a "small class" of decisions
that do not end the litigation but are nonetheless considered
"final" and thus immediately reviewable. Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). "That small category
includes only decisions that are conclusive, that resolve
important questions separate from the merits, and that are
effectively unreviewable on appeal from the final judgment in the
underlying action." Swint v. Chambers Cty. Comm'n, 514 U.S. 35,
42 (1995); see also United States v. Quintana–Aguayo, 235 F.3d
682, 684 (1st Cir. 2000) (per curiam). Gorski argues that the
collateral order doctrine gives us jurisdiction over his appeal
because the district court's discovery order will be effectively
unreviewable in an end-of-case appeal.
Gorski's argument is squarely at odds with the Supreme
Court's decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S.
100 (2009). In Mohawk, the Court held that "collateral order
appeals are not necessary to ensure effective review of orders
adverse to the attorney-client privilege," id. at 108, because
"postjudgment appeals generally suffice to protect the rights of
litigants and ensure the vitality of the attorney-client
even assert attorney-client privilege over the documents the
prosecution seeks from Mintz Levin, or whether the privilege is
held by Legion alone. We do not resolve this issue because we
lack jurisdiction over Gorski's appeal even if he is a privilege-
holder.
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privilege," id. at 109. The Court reasoned that when disclosure
orders are held to be erroneous on postjudgment appeal,
"[a]ppellate courts can remedy the improper disclosure of
privileged material in the same way they remedy a host of other
erroneous evidentiary rulings: by vacating an adverse judgment and
remanding for a new trial in which the protected material and its
fruits are excluded from evidence." Id. Moreover, the Court
noted, immediate review of serious errors is available through a
writ of mandamus or by a contemptuous refusal to comply with the
discovery order and an appeal of the subsequent contempt order.
Id. at 111.
Gorski attempts to distinguish Mohawk by pointing out
that if we do not hear his appeal, our decision on Legion's appeal
will become the law of the case and prevent Gorski from
relitigating the issue on appeal from final judgment. This, Gorski
claims, makes the discovery order effectively unreviewable on
final judgment in a way that distinguishes Mohawk. But even if
Gorski is correct about the applicability of the law of the case
doctrine -- an issue we do not decide -- the Court made it clear
in Mohawk that the availability of collateral order review is
determined by examining "the class of claims, taken as a whole."
Id. at 107. As such, Mohawk held that parties are categorically
barred from appealing privilege-related disclosure orders under
the collateral order doctrine, notwithstanding the fact "[t]hat a
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fraction of orders adverse to the attorney-client privilege may
nevertheless harm individual litigants in ways that are 'only
imperfectly reparable.'" Id. at 112 (quoting Dig. Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 872 (1994)). We do not have
jurisdiction over Gorski's appeal.
Legion, a non-party to the indictment, claims appellate
jurisdiction under an exception to the final order doctrine
deriving from Perlman v. United States, 247 U.S. 7 (1918). Under
Perlman, "a discovery order addressed to a non-party sometimes may
be treated as an immediately appealable final order vis-à-vis a
party who claims to hold an applicable privilege." Ogden Corp.,
202 F.3d at 459. The rationale for Perlman is that when the target
of a discovery order is a non-party, a party claiming the privilege
cannot gain the right of appeal by itself refusing to produce
discovery and being held in contempt. See id. Nor will the target
of the discovery order allow itself to be held in contempt to
obtain appellate review on behalf of the privilege-holder because
the non-party "presumably lacks a sufficient stake in the
proceeding to risk contempt by refusing compliance." Id. (quoting
Church of Scientology v. United States, 506 U.S. 9, 18 n.11
(1992)). As such, "[c]ourts frequently have invoked Perlman when
a client . . . seeks to appeal an order compelling her
attorney . . . to produce allegedly privileged materials." Id.- 13 -
Legion's appeal presents a classic Perlman situation.
The district court has ordered Mintz Levin, a non-party, to produce
documents. Legion asserts attorney-client privilege over those
documents, but it cannot bring an immediate challenge to that order
by allowing itself to be held in contempt because it is not the
target of the subpoena at issue.2 Nor does it seem that Mintz
Levin has any intention of refusing to comply and therefore risking
contempt. See id. Because Legion is a non-party, it cannot ensure
that there would be any traditional final judgment from which to
appeal, either. Legion is thus "powerless to avert the mischief
of the order," Perlman, 247 U.S. at 13, unless we apply the Perlman
exception and take appellate jurisdiction.
We have jurisdiction over the prosecution's cross-appeal
under 18 U.S.C. § 3731, which provides that "[a]n appeal by the
United States shall lie to a court of appeals from a decision or
order of a district court suppressing or excluding evidence."
III.
In privilege cases, we review questions of law de novo,
factual findings for clear error, and discretionary judgments for
2 Although there is also a subpoena against Legion, the
district court's production order as to Legion has been stayed and
held in abeyance pending our resolution of the appeals of the order
as to Mintz Levin. Therefore, we have before us only the part of
the district court's order compelling production from Mintz Levin.
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abuse of discretion. Cavallaro v. United States, 284 F.3d 236,
245 (1st Cir. 2002).
The attorney-client privilege is "a privilege of a
client to refuse to testify or to have his counsel testify as to
confidential communications between the two made in connection
with the rendering of legal representation." In re Grand Jury
Proceedings, 417 F.3d 18, 21 (1st Cir. 2005). The crime-fraud
exception "withdraws protection where the client sought or
employed legal representation in order to commit or facilitate a
crime or fraud." Id. at 22. The party invoking the crime-fraud
exception "must make a prima facie showing: (1) that the client
was engaged in (or was planning) criminal or fraudulent activity
when the attorney-client communications took place; and (2) that
the communications were intended by the client to facilitate or
conceal the criminal or fraudulent activity." In re Grand Jury
Proceedings (Gregory P. Violette), 183 F.3d 71, 75 (1st Cir. 1999);
see also United States v. Albertelli, 687 F.3d 439, 450 (1st Cir.
2012). By prima facie showing, we mean "a reasonable basis to
believe that the lawyer's services were used by the client to
foster a crime or fraud." In re Grand Jury Proceedings, 417 F.3d
at 23 & n.4. This standard may be met by "something less than a
mathematical (more likely than not) probability that the client
intended to use the attorney in furtherance of a crime or fraud."
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Id. at 23. However, it requires more than "speculation [or]
evidence that shows only a distant likelihood of corruption." Id.
Here, we are satisfied that the reasonable basis
standard is met as to both parts of the crime-fraud exception
test.3 As to the first part, the district court correctly noted
3 Two antecedent issues are raised by Gorski's brief but
not by Legion's brief. Though we do not have jurisdiction over
Gorski's appeal and Legion does not expressly adopt the arguments
in Gorski's brief, we understand Gorski to make these arguments in
opposition to the government's appeal, and so we address them.
The first issue is whether the district court erred in
conducting an in camera review of the privileged documents at all.
The Supreme Court has held that district courts may conduct an in
camera review of privileged materials upon a "good faith belief by
a reasonable person," United States v. Zolin, 491 U.S. 554, 572
(1989) (quoting Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo.
1982)), that "in camera review of the materials may reveal evidence
to establish the claim that the crime-fraud exception applies,"
id. The standard for in camera review is a "very relaxed test"
that requires a lesser evidentiary showing than what is ultimately
needed to pierce the privilege. In re Grand Jury Proceedings, 417
F.3d at 22. That standard was met by the prosecution's allegation
that Mintz Levin's restructuring of Legion was part of a five-year
ongoing scheme whose essence was that the outward structure of the
company did not match its actual ownership and control. Gorski's
argument that the use of an effective date on corporate documents
was not illegal and so could not have formed the basis for the in
camera review is too narrowly focused, because it is the entire
five-year scheme alleged in the indictment that justifies in camera
review. A jury could view the chronology as an attempt to convince
the SBA that transactions took place before they did, and to dispel
any reason for further SBA inquiry.
The second issue is whether the district court erred in
not considering a January 2, 2014, decision by a magistrate judge
not to conduct an in camera review under Zolin. It is uncontested
that the prosecution did not file a timely appeal of the magistrate
judge's order and thereby waived its right to review under Federal
Rule of Criminal Procedure 59(a). However, the advisory committee
notes on Rule 59(a) specifically provides that "[d]espite the
waiver provisions, the district judge retains the authority to
review any magistrate judge's decision or recommendation whether
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that the indictment provides a reasonable basis to believe that
Gorski and/or Legion was engaged in criminal or fraudulent
activity.
As to the second part, we too have reviewed the numerous
and varied documents and agree with the district court's
characterizations. There are many communications between Gorski
and his attorneys on the "perceived need to revise [Legion's]
corporate structure." The facts concerning the chronology of the
events and the relevance of the dates to the regulatory structure
are documented. There is considerable information about the bid
protest, choices as to how to respond, and the preparation of
affidavits for submission to the government.
The district court correctly concluded that there was a
reasonable basis to believe that the attorney-client
communications "were intended by the client to facilitate or
conceal the criminal or fraudulent activity." In re Grand Jury
Proceedings, 183 F.3d at 75. Gorski allegedly orchestrated an
ongoing scheme in which, for five years, he maintained the outward
appearance that Legion was compliant with SDVOSB regulations while
retaining actual control for himself. Mintz Levin was retained to
or not objections are timely filed." See Fed. R. Crim. P. 59(a)
advisory committee's note to 2005 adoption; see also Thomas v.
Arn, 474 U.S. 140, 154 (1985). It was well within the district
court's discretion to decide the issue on its own, even after the
time had passed for the prosecution to appeal the magistrate
judge's order.
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restructure Legion to maintain that supposed compliance with
changing SDVOSB regulations. The fact that Gorski intended to
continue the fraudulent scheme even after achieving outward
compliance with the new SDVOSB regulations in early 2010 may be
inferred from the allegation that, between July and November 2010,
Gorski was in discussions with Legion's accountant to provide him
with hidden additional compensation. In short, there is a
reasonable basis to believe that for a five-year period running
both before and after the 2010 restructuring, Gorski exercised
ownership and control over Legion in excess of that which was
reported to the SBA. There is also a reasonable basis to believe
that, with the intent of continuing this scheme, Gorski and/or
Legion sought out the services of Mintz Levin to restructure Legion
and maintain Legion's outward compliance with SDVOSB regulations.
Legion argues that Gorski and/or Legion lacked the
intent to use Mintz Levin's services to further or conceal criminal
activity because they were merely seeking to ensure that Legion
was in compliance with the new SDVOSB regulations. They contend
that there is no evidence that Gorski lied to the lawyers or
withheld material information from them. It is true that a
reasonable inference may be drawn in favor of Gorski from the fact
that he approached a reputable law firm to assist him in the
restructuring and, as the district court noted, this inference may
carry the day at trial. However, it is also reasonable to infer
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that Mintz Levin was retained with the intent of creating outward
compliance with the amended regulations so that Gorski could
continue his ongoing scheme to retain hidden ownership and control.
That reasonable inference suffices to meet the "something less
than a mathematical (more likely than not) probability" standard,
In re Grand Jury Proceedings, 417 F.3d at 23, that the prosecution
had to meet to defeat the attorney-client privilege.
Legion argues that even if the above were true, the
production order was overbroad because the district court did not
conduct a document-by-document review to determine specifically
which communications and documents were in furtherance of the
criminal or fraudulent conduct. However, the district court made
it clear in a status conference following the order that its
decision was the result of "a document-by-document review." We
too have reviewed the documents. The district court could have
done a document-by-document analysis and still readily concluded
that all of the documents from Mintz Levin fell within the crime-
fraud exception based on a reasonable inference that the entire
scope of the representation was intended by Gorski to further the
crime or fraud. Gorski's ongoing scheme required Legion to be
structured to maintain the appearance of compliance with SDVOSB
regulations, and the entire scope of Mintz Levin's representation
was related to the 2010 restructuring. As such, there was a
reasonable basis to conclude that there was a complete congruence
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between everything Mintz Levin did and the fraudulent purpose by
Gorski that triggers the crime-fraud exception.
Our decision that a prima facie case for the crime-fraud
exception has been made does not reflect a finding on the ultimate
question of whether Gorski acted wrongfully. See United States v.
Schussel, 291 F. App'x 336, 346 (1st Cir. 2008). Nor does it bear
on the conduct or intent of the lawyers involved, because the
crime-fraud exception is triggered by the intent of the client.
In re Grand Jury Proceedings, 183 F.3d at 79.
IV.
In its cross-appeal, the prosecution challenges the
district court's quashing of the prosecution's subpoena as to the
"category three" documents, which consisted of communications
between Gorski and his personal attorney, Schwartz, in relation to
the 2010 restructuring. The district court reasoned that even
though "[t]he basic intent of those communications is arguably the
same as his communications with Mintz Levin," the crime-fraud
exception does not apply to those documents because "Ms. Schwartz
apparently had no role in the submission to the SBA."
The prosecution argues that the district court erred
because whether or not Schwartz was involved in the submissions to
the SBA relating to the bid protest was legally irrelevant. We
agree. As described above, the crime-fraud exception applies upon
two prima facie showings: first, that the client was engaged in
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criminal or fraudulent activity; and second, that the attorney-
client communications were intended by the client to facilitate or
conceal the criminal or fraudulent activity. See id. at 75. The
district court found that the indictment provided a reasonable
basis to believe that Gorski was engaged in criminal activity,
meeting the first requirement. As for the second requirement, the
district court recognized that Gorski's intent with regard to
Schwartz was arguably the same as his intent with regard to Mintz
Levin: to perpetuate an ongoing scheme to conceal the true
ownership and control of Legion over a five-year time period. The
fact that Schwartz was not actually involved in the submission of
documents in the bid protest or otherwise has no necessary bearing
on either of those two points. Further, Schwartz predated Mintz
Levin as counsel advising Gorski on Legion. The government alleges
there was an earlier part of an ongoing fraud. Gorski did indeed
ask her for ideas on how to "financially benefit from [his]
efforts" despite the nominal restructuring and his concerns about
no longer being the "primary shareholder" despite shouldering the
"balance of responsibilities" after the restructuring.
Because the district court appears to have employed
incorrect legal reasoning with regard to the "category three"
documents, we vacate and remand that portion of the district court
order for application of the correct legal standard.
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V.
We dismiss Gorski's appeal for want of appellate
jurisdiction. We vacate the portion of the district court order
quashing the prosecution's subpoena as to the "category three"
documents, and remand for further proceedings consistent with this
opinion. Otherwise, we affirm the district court's order of
production as to Mintz Levin. Costs are taxed against David E.
Gorski and Legion Construction, Inc.
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