United States v. Deborah Ahmad Bey ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2810
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEBORAH AHMAD BEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 156-1—Sharon Johnson Coleman, Judge.
____________________
ARGUED JULY 8, 2014 — DECIDED DECEMBER 2, 2014
____________________
Before WOOD, Chief Judge, and BAUER and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Deborah Ahmad Bey appeals
her 2010 conviction for failing to surrender to prison authori-
ties. She contends her conviction was based on evidence of a
privileged and inadmissible attorney-client communication
telling her when she had been ordered to report for prison.
2 No. 13-2810
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, 821 F.2d 1566, 1567 (11th Cir. 1987). We there-
fore affirm.
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 a cross-appeal
by the government. We affirmed her conviction but agreed
with the government that the sentence was too 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 certiorari. 555 U.S. 1203
(2009).
When the parties returned to the district court in 2008,
the court resentenced Bey to 24 months in prison. The court
ordered her to self-surrender. The district judge twice
changed Bey’s surrender date. After the second extension in
October 2008, Bey’s lawyer, Kent Anderson, mailed her a
No. 13-2810 3
one-page letter enclosing the court’s order resetting her sur-
render date to December. When Bey did not surrender, 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 comply
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 the 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 to prison. You are now supposed to report
to prison or the local Marshal’s office on December 8, 2008.
4 No. 13-2810
* * * Please contact me if you have any questions or concerns
regarding your appeal.” The enclosed order directed Bey 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 served that much time, she was re-
leased immediately. Bey now appeals her conviction.
Analysis
The only issue on appeal is whether 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 letter 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-
No. 13-2810 5
ard-Allen, 739 F.3d at 952; Shaffer v. American Medical Ass’n,
662 F.3d 439, 446 (7th Cir. 2011).
We have not previously addressed this question, but
other circuits have held consistently that the attorney-client
privilege does not apply to communications 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, 876 F.2d 1411, 1415
(9th Cir. 1989) (agreeing that lawyer could testify that he in-
formed client of sentencing date); United States v. Innella, 821
F.2d 1566, 1567 (11th Cir. 1987) (lawyer’s notice to client of
surrender date was not privileged); United States v. Bourassa,
411 F.2d 69, 74 (10th Cir. 1969) (same); United States v. Hall,
346 F.2d 875, 882 (2d Cir. 1965) (same); see also Antoine v. At-
las Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (applying same
rule to lawyer’s communications to client about court dates
and mailings of applications for default judgment in civil
case).
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.
6 No. 13-2810
Bey contends, though, that the second sentence of the let-
ter did more than 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,
132 F.3d 504, 508 (9th Cir. 1997) (holding that a lawyer’s ad-
vice to his client about the legal requirements for truthful
disclosures in bankruptcy proceedings was privileged). The
argument attributes too much depth to the letter. The order
itself directed Bey to “surrender” to prison, and the letter
just repeated that direction by reciting that she was “sup-
posed to report.” That is not confidential legal advice.
The government also argues that additional evidence of
Bey’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.