United States v. Robinson ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-11359
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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August 29, 1997
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue in this appeal from a perjury conviction is whether
the lawyer-client privilege covers: (1) a forfeiture notice
received by Clarence Robinson and handed by him to a lawyer
representing Robinson in another proceeding; and (2) that transfer
of the notice, as well as Robinson’s communications with that, and
another, lawyer, both of whom declined to represent Robinson in the
forfeiture proceedings. The district court rejected the claimed
privilege and admitted the evidence. We AFFIRM.
I.
When Robinson was arrested by DEA agents for drug-related
offenses in early January 1994, approximately $3500 was seized.
Several weeks later, on 14 February, the DEA sent Robinson a
notification of forfeiture (the notice) at the Lubbock County Jail,
where he was incarcerated. Robinson was then represented in the
criminal proceeding by appointed counsel, Mike Thomas.
In late February, Thomas visited Robinson at the jail to
discuss that representation. The conference took place in a secure
meeting room so that prisoners could meet in secrecy with their
lawyers. During the meeting, Robinson handed the notice to Thomas,
asking Thomas if he would represent him (Robinson) in the
forfeiture proceeding.
Thomas responded that he had been appointed to represent
Robinson only with respect to the criminal proceeding. Robinson
then asked Thomas to forward the notice to Ruth Cantrell, a lawyer
who had previously represented Robinson.
Thomas left the jail with the notice in hand. He promptly
made a copy of the notice and mailed it to Cantrell, together with
a letter explaining his conversation with Robinson; made a copy of
the notice for his (Thomas’) file; and returned the original notice
to Robinson, along with a copy of his letter to Cantrell. Thomas
included a letter of his own to Robinson.
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Thomas kept copies of the documents in his file. His
representation of Robinson in the criminal matter ended in May
1994, when new counsel was appointed for Robinson’s appeal.
By letter to Robinson in March 1994 referencing “seizure”,
Cantrell stated that she did not feel qualified to represent
Robinson. She also sent him copies of the materials Thomas had
provided her.
In March 1995, Robinson sought, pro se, the return of the
money forfeited in accordance with the 1994 notice. His position
in district court was that he did not know of the forfeiture
proceeding: “If it was done, it was without any notice being sent
to this plaintiff”. The district court denied relief.
Robinson appealed, stating in his pro se brief that he had
never received a notice of forfeiture, or seen the notice which the
DEA published in “USA Today”, or had actual notice. Our court
remanded the case for a hearing on whether the DEA had properly
notified Robinson of the forfeiture.
On remand, Robinson testified in June 1996 as follows:
Well, your honor[,] I never did receive
forfeiture papers while I was locked up in
jail. And I never did notice that they was
taking anything, my money or anything like
that, because I wasn’t told they was taking my
money. I wasn’t given a receipt for my money,
and my money was not drug related money.
The court: All right, sir. So it is your
position that you did not receive actual
notice from the government that they were
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going to seek forfeiture of this money; is
that right?
Robinson: No, sir.
The court: Okay. When you said “no, sir”,
you are agreeing with my statement?
Robinson: Yes, sir.
The court: Okay. And you were in the county
jail here in Lubbock; is that right; at the
time these proceedings took place?
Robinson: Yes, sir.
The next day, an Assistant United States Attorney, who had
previously contacted Thomas about the matter, told Thomas about
Robinson’s testimony that he had never received the notice. Thomas
responded that he might have documents in his file pertaining to
the truthfulness of that testimony.
Shortly thereafter, a grand jury subpoena issued for any such
documents. Thomas produced them for the grand jury. The produced
documents, to include those subpoenaed from, and produced by,
Cantrell, were: the copies of the notice given by Robinson to
Thomas and sent to Cantrell, and the letters those lawyers sent
each other and Robinson concerning the forfeiture.
Robinson was indicted for perjury. After a pre-trial
suppression hearing, in which he asserted the lawyer-client
privilege as to Thomas and Cantrell, the trial court ruled from the
bench that, based on the evidence presented,
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this communication between Mr. Robinson and
attorneys Thomas and Cantrell were
communications that were not intended to
remain confidential. In other words they were
not made in confidence.
The document in question--that is, the notice
of seizure--was a government document created
and received from the Government by Mr.
Robinson. He was seeking to give this
document to these attorneys in an effort to
have them represent him in the DEA seizure and
forfeiture proceedings. For that reason I do
not believe that the communications were
cloaked with the attorney/client privilege.
Likewise, the order denying the suppression motion stated in
part:
The Court finds that the communication in
question between Defendant Robinson and
attorneys Thomas and Cantrell was a
communication not intended to remain
confidential. The communication dealt with a
document created by the Government and
received by Mr. Robinson from the Government.
The communication involved Mr. Robinson
seeking legal counsel to contest the DEA
seizure and forfeiture proceedings. Such
communication was not made in confidence.
At the trial on the perjury charge, this objected-to evidence
was admitted. Robinson was convicted of perjury.
II.
Robinson contends that the district court erred in not
excluding the testimony of Thomas and Cantrell. Along this line,
he concedes, of course, that the notice per se is not cloaked with
the lawyer-client privilege. Instead, he asserts that his receipt
of it is.
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“Except as otherwise required by the Constitution of the
United States” or other authority listed in Rule 501, the lawyer-
client privilege “shall be governed by the principles of the common
law as they may be interpreted by the courts of the United States
in the light of reason and experience”. FED. R. EVID. 501.
Accordingly, we review a district court’s ruling on such a claim as
“a question of fact, to be determined in the light of the purpose
of the privilege and guided by judicial precedents”. United Sates
v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994), called into doubt on
other grounds by United States v. Crouch, 51 F.3d 450 (5th Cir.
1995); Hodges, Grant & Kaufmann v. IRS, 768 F.2d 719, 721 (5th Cir.
1985). As usual, factual findings are reviewed for clear error;
conclusions of law, de novo. Neal, 27 F.3d at 1048.
The purpose of the privilege is to “encourage full and frank
communication between lawyers and their clients and thereby promote
broader public interests in the observance of law and
administration of justice”. United States v. (Under Seal), 748
F.2d 871, 873 (4th Cir. 1984) (quoting Upjohn v. United States, 449
U.S. 383, 389 (1981)), vacated as moot on other grounds by 757 F.2d
600 (4th Cir. 1985). On the other hand, because the privilege “has
the effect of withholding relevant information from the fact-
finder, it applies only where necessary to achieve its purpose”.
Fisher v. United States, 425 U.S. 391, 403 (1976); see also In re
Grand Jury Proceedings (Jones), 517 F.2d 666, 671-72 (5th Cir.
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1975) (“criminal liability” exception to general rule of non-
confidentiality of identity of client “a limited and rarely
available sanctuary” because it “runs counter to the dominant aims
of the law”).
The assertor of the lawyer-client privilege must prove: (1)
that he made a confidential communication; (2) to a lawyer or his
subordinate; (3) for the primary purpose of securing either a legal
opinion or legal services, or assistance in some legal proceeding.
Neal, 27 F.3d at 1048; In re Grand Jury Proceedings, 517 F.2d at
670.
A.
The first question is whether the copy of the notice which
Thomas retained is privileged in its own right, as distinguished
from Robinson’s contemporaneous communications to Thomas when
Robinson handed over the notice. It goes without saying that
documents do not become cloaked with the lawyer-client privilege
merely by the fact of their being passed from client to lawyer.
“If the client is compellable to give up possession, then the
attorney is”. 8 Wigmore on Evidence § 2307 (McNaughton Rev. 1961).
In the case of pre-existing documents, if they “could have
been obtained by court process from the client when he was in
possession[, they] may also be obtained from the attorney by
similar process following transfer by the client in order to obtain
more informed legal advice”. Fisher, 425 U.S. at 403. This result
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is in accordance with the purposes of the privilege; a client will
not be less likely to show his lawyer important documents, because
those documents do not become more easily discoverable by their
revelation to the lawyer. Id. at 403. In the case at hand,
the notice was discoverable when in Robinson’s hands. It did not
become less so by its transfer to Thomas. Moreover, the notice was
not only received by Robinson from a third party, it was
government-generated. Furthermore, we find no exception to the
general rule because the document produced by Thomas was a copy of
the notice, the original having been returned by him to Robinson.
Our inquiry does not end here, however. The admission in
evidence of the notice (copy) retained by Thomas, without more,
could arguably not have caused a rational juror to find, beyond a
reasonable doubt, that Robinson received that notice, either from
the Government or Thomas. There are several plausible, and
obvious, explanations why Thomas might have been in possession of
the notice without Robinson having ever been in possession. For
this reason, we must address two more issues: whether the fact of
Robinson’s transfer/transmission of the document to Thomas is
privileged; and whether Robinson’s statements to Thomas
contemporaneous with that transmission, as well as Cantrell’s
communications (letter) to Robinson, are privileged.
B.
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Whether the privilege covers Robinson’s possession of the
document and its delivery to Thomas presents a slightly more
difficult issue than did the document qua document. There is
authority for the position that, with respect to pre-existing
documents, “sending the document to the lawyer for perusal or
handing it to him and calling attention to its terms ... and the
knowledge of the terms and appearance of the documents which the
lawyer gains thereby are privileged from disclosure by testimony in
court”. 1 McCormick on Evidence § 89 (4th ed.); accord, In re
Grand Jury Proceedings, 959 F.2d 1158, 1165 (2d Cir. 1992)
(attorney client privilege in the context of pre-existing documents
“attaches not to the information but to the communication of the
information”).
The more reasoned approach, however, is that, although a
communication of “the place of custody of a document may be a part
of a communication ... and may also be a confidential one ...
ordinarily it will be neither”. 8 Wigmore on Evidence § 2309
(McNaughton Rev. 1961). This is because, again, the privilege is
to be construed narrowly to apply only where its application would
serve its purposes; where it is doubtful that a client means to
communicate confidentially, the privilege does not attach, as the
client would have acted similarly even without the privilege.
The instant case is no exception. There is no evidence that
Robinson intended that the fact of his possession of the notice be
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“communicated” to Thomas when he handed the document to Thomas.
Robinson merely handed the notice to Thomas, hoping to secure his
representation; the document delivery was intended merely to
facilitate the representation, not as a statement of possession.
Such delivery cannot reasonably be construed as a “communication”.
Again, we note that Robinson has the burden of showing each element
of the privilege. He has failed to prove that his transfer of the
notice was a communication of the fact of his possession of it.
In any event, assuming arguendo that Robinson’s transfer of
the notice was a “communication” of his possession of the notice,
there is no evidence that Robinson meant for the communication to
be confidential. “It is vital to a claim of privilege that the
communication have been made and maintained in confidence”. United
States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976). The assertor
of the privilege must have a reasonable expectation of
confidentiality, either that the information disclosed is
intrinsically confidential, or by showing that he had a subjective
intent of confidentiality. Id. at 563; United States v. Melvin,
650 F.2d 641, 646-47 (5th Cir. Unit B 1981). It is not enough for
the meeting to be between a lawyer and would-be client, or that
the meeting take place away from public view. See id. at 646-47.
Obviously, Robinson’s possession of the notice was not
intrinsically confidential; the government-generated document,
addressed to Robinson in care of the county jail, was delivered to
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the jail by certified mail. The return receipt is stamped February
22, 1994, and is signed by an authorized person for the county. In
short, knowledge of the delivery of the notice to the jail was
quite public, to say the least. Restated, mailing the notice to
the jail, and its receipt by the jail, preclude its subsequent
possession by Robinson from being intrinsically confidential.
Furthermore, Robinson showed no intent to retain in confidence
the fact of his possession of the notice. Toward that end, “we
must look to the services which the attorney has been employed [or
sought] to provide and determine if those services would reasonably
be expected to entail the publication of the clients’
communications”. In re Grand Jury Proceedings, 748 F.2d at 875.
Robinson was seeking legal representation in the forfeiture action.
It is difficult to imagine a course of representation in that
regard which would not entail the disclosure of the notice and
Robinson’s receipt of it. The notice would quite likely be one of
the first documents, if not the first, referenced in any such
representation. Under these circumstances, any expectation by
Robinson of the confidentiality of his possession of the notice
would be manifestly unreasonable. In short, the possession was not
in confidence.
C.
Finally, we address both Thomas’ testimony about Robinson’s
statements to him when Robinson handed him the notice, and
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Cantrell’s testimony about her communication with Robinson. Again,
“[i]t is vital to a claim of privilege that the communication have
been made and maintained in confidence”. Pipkins, 528 F.2d at 563.
1.
Robinson’s statements to Thomas were concerned with, and
intended to secure, legal representation. The fact of
representation, or an attempt at securing it, are generally not
within the privilege. In re Grand Jury Proceedings (Jones), 517
F.2d at 670-71.
There is an exception to this rule, however, where revealing
the identity of the client would be probative or relevant to a
criminal charge against the client. Id. at 672. But, again, as in
all cases, the client must have had a reasonable expectation of
confidentiality, either because the information disclosed is
intrinsically confidential, or because he had a subjective intent
of confidentiality. Pipkins, 528 F.2d at 563; United States v.
Melvin, 650 F.2d 641, 646-47 (5th Cir. Unit B 1981).
Robinson’s statements to Thomas, including his request for
legal representation (therefore his identity as a client or would-
be client), are not intrinsically confidential, for the same
reasons that his transfer of the notice to Thomas was not. Any
reasonably foreseeable representation would entail the disclosure
that Thomas represented Robinson and, therefore, the substance of
Robinson’s statements to Thomas at their meeting. This information
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would become public very quickly. Indeed, prior to citing the
notice of forfeiture, perhaps the only thing which might earlier
become public in a challenge to the forfeiture, see supra, would be
Thomas’ statement, written or oral, that he was representing
Robinson in that proceeding. Expecting otherwise is unreasonable.
Robinson’s statements to Thomas were not confidential. The
same applies equally to Cantrell’s communication with Robinson.
2.
In any event, even if Robinson’s statements to Thomas, or
Cantrell’s communication with Robinson, are cloaked in the lawyer-
client privilege, their admission in evidence would be harmless
error. See FED. R. EVID. 103; United States v. Aucoin, 964 F.2d
1492, 1499 (5th Cir. 1992) (applying harmless error analysis to
claim of lawyer-client privilege); United States v. Moody, 923 F.2d
341, 352 (5th Cir. 1991) (same); United States v. Jimenez Lopez,
873 F.2d 769, 771 (5th Cir. 1989) (“even if abuse of discretion in
the admission or exclusion of evidence is found, the error is
reviewed under the harmless error doctrine”). The notice and
Thomas’ testimony about Robinson handing it to him, neither of
which are protected by the privilege, would be more than sufficient
for a rational juror to find, beyond a reasonable doubt, that
Robinson committed perjury.
III.
For the foregoing reasons, the judgment is
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AFFIRMED.
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