United States v. Billy Swann ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30199
Plaintiff-Appellee, D.C. No.
3:17-cr-05269-RJB-1
v.
BILLY JIM SWANN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted December 9, 2019**
Seattle, Washington
Before: GRABER, BERZON, and HIGGINSON,*** Circuit Judges.
Billy Jim Swann appeals his convictions, following a bench trial, of perjury,
social security fraud, and wire fraud. He challenges the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
granting the government’s motion to apply the crime-fraud exception to his
communications with his attorney. He also challenges the admission of attorney
work product at his trial. For the following reasons, we affirm.
1. The district court applied the correct legal standard in granting the
government’s motion to apply the crime-fraud exception, thus allowing the
government to admit testimony and written communications from Swann’s civil
attorney. To trigger the crime-fraud exception, the government must establish that
“the client was engaged in or planning a criminal or fraudulent scheme when it
sought the advice of counsel to further the scheme.” In re Grand Jury Proceedings,
87 F.3d 377, 381 (9th Cir. 1996). Whatever the applicable standard of review, we
conclude that the district court properly applied the exception. See United States v.
Zolin, 491 U.S. 554, 572 (1989) (providing framework for applying the crime-
fraud exception); United States v. Christensen, 828 F.3d 763, 798 (9th Cir. 2015)
(explaining standards of review).
Testimony introduced on the first day of trial provided the district court with
a “good faith belief” that in camera review of attorney-client communications
might “reveal evidence to establish the claim that the crime-fraud exception
applies.” Zolin, 491 U.S. at 572. The government presented evidence that, although
he maintained steady and lucrative work as a fishing guide, Swann sought the
advice of an attorney to obtain social security disability benefits. After conducting
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in camera review, the district court authorized the admission of two documents
demonstrating that Swann was aware of his lawyer’s filings on his behalf. Because
Swann denied that he caused the law firm to make false representations, this
evidence was relevant to the charges against him.1 See United States v. Holden,
908 F.3d 395, 399–401 (9th Cir. 2018) (providing standard for wire fraud); Fed. R.
Evid. 401. Testimony from Swann’s attorney, which was narrowly limited to
representations Swann made to the attorney about his ability to maintain
employment, was also properly admitted. In re Grand Jury Proceedings, 87 F.3d at
382–83.
The fact that Swann was tried by a judge rather than a jury does not compel
a different conclusion. See Kistmet Acquisition, LLC v. Diaz-Barba (In re
Icenhower), 755 F.3d 1130, 1141 (9th Cir. 2014) (affirming application of crime-
fraud exception during bench trial). The government bears the same burden of
proof in a bench trial and a jury trial. United States v. Overton, 573 F.3d 679, 685
(9th Cir. 2009). Moreover, it is irrelevant that the government initially argued that
the crime-fraud exception was necessary to avoid juror confusion. The exception
applies when a client uses his attorney’s services in furtherance of a crime or
fraudulent scheme. Once it is clear that the evidence is admissible, the crime-fraud
1
Swann does not challenge the government’s decision to premise his wire fraud
charges on his lawyer’s filings. We express no opinion on this practice or its validity.
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exception does not require the government to articulate a particular reason to
introduce the evidence. See In re Grand Jury Proceedings, 87 F.3d at 381.
2. Swann also has not demonstrated that the district court erred in admitting
attorney work product. Because the materials and testimony did not reveal “mental
impressions” of Swann’s attorney, the work product introduced at trial was factual
only. Thus, it was properly admitted under the crime-fraud exception, even without
a showing that Swann’s attorney “knowingly participated in any criminal activity.”
In re Grand Jury Proceedings, 867 F.2d 539, 541 (9th Cir. 1989).
AFFIRMED.
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