In Re: Sealed Case ( 1998 )


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  •                         United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Filed December 1, 1998
    No. 98-3052
    In re:  Sealed Case
    Consolidated with
    Nos. 98-3053 & 98-3059
    BEFORE:  Ginsburg, Randolph, and Tatel, Circuit Judges.
    O R D E R
    Upon consideration of the responses of Francis D. Carter
    and of the United States of America, acting through the
    Office of the Independent Counsel, to the Court's order to
    show cause why the opinion in this case should not be
    unsealed, it is
    ORDERED, that the opinion in this case is no longer
    protected from public disclosure by Rule 6(e), Fed. R. Crim.
    P., in view of the public release, by the House Committee on
    the Judiciary, of Mr. Carter's grand jury testimony tran-
    script, see H.R. Doc. 105-316, at 393-433 (Sept. 28, 1998);  and
    it is further
    ORDERED, that the judgment and opinion of this Court in
    In re:  Sealed Case, No. 98-3052 (D.C. Cir. May 26, 1998),
    shall be unsealed;  and it is further
    ORDERED, that the order to show cause is discharged;
    and it is further
    ORDERED, pursuant to this Court's Local Rule 47.1(c),
    that the following materials also shall be unsealed:
    1. Motion of the United States of America for Summary
    Dismissal of Appeal of Francis D. Carter, Esq., for Want of
    Jurisdiction (May 1, 1998);
    2. Motion of the United States of America to Expedite
    Consideration of the Appeal and for an Abbreviated Briefing
    Schedule (May 1, 1998);
    3. Motion of Francis D. Carter for Extension of Time to
    File Opposition to Motion for Summary Dismissal and Motion
    to Set Briefing Schedule (May 5, 1998);
    4. Response of the United States of America to Motion for
    Extension of Time to File Opposition to Motion for Summary
    Dismissal and Motion to Set Briefing Schedule (May 5, 1998);
    5. Order of this Court granting motion to expedite and
    setting briefing schedule (May 5, 1998);
    6. Brief of Cross-Appellant United States (May 11, 1998);
    7. Cross-Appellant's Appendix (May 11, 1998);
    8. Brief for Appellant Francis D. Carter, Esq. (May 11,
    1998);
    9. Appendix for Appellant Francis D. Carter, Esq. (May
    11, 1998);
    10. Opening Brief of Appellant Monica Lewinsky (May 11,
    1998);
    11. Appendix of Appellant Monica Lewinsky (May 11,
    1998);
    12. Request for Judicial Notice by Appellant Monica Lew-
    insky (May 11, 1998);
    13. Brief of Appellee United States (May 14, 1998);
    14. Brief for Cross-Appellee Francis D. Carter, Esq.
    (May 14, 1998);
    15. Reply Brief for Appellant Francis D. Carter, Esq.
    (May 15, 1998);
    16. Reply Brief of Appellant Monica Lewinsky (Lodged
    May 15, 1998);
    17. Reply Brief of Cross-Appellant United States (May
    15, 1998);
    18. Motion to Night File Reply Brief of Monica Lewinsky
    (May 19, 1998);
    19. Order of this Court granting leave to file lodged reply
    brief out of time (May 26, 1998);
    20. Order of this Court to show cause why the opinion in
    this case should not be unsealed (Nov. 16, 1998);
    21. Response of the United States of America to the
    November 16, 1998 Order to Show Cause (Nov. 23, 1998);
    22. Response of Francis D. Carter to Order to Show
    Cause Why Opinion Should Not Be Unsealed and Motion to
    Unseal Entire Record (Nov. 23, 1998).
    Per Curiam
    United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Filed May 26, 1998
    No. 98-3052
    In re:  Sealed Case
    Consolidated with
    Nos. 98-3053 & 98-3059
    Appeals from the United States District Court
    for the District of Columbia
    (98ms00068)
    Nathaniel H. Speights filed the briefs for appellant Monica
    Lewinsky.
    Charles J. Ogletree, Jr. filed the briefs for appellant Fran-
    cis D. Carter, Esq.
    Robert J. Bittman, Deputy Independent Counsel, filed the
    briefs for cross-appellant the United States.
    Before:   Ginsburg, Randolph, and Tatel, Circuit Judges.
    Opinion for the Court filed by Circuit Judge Randolph.
    Randolph, Circuit Judge:  In 1997, Monica S. Lewinsky, a
    former White House intern, received a subpoena to produce
    items and to testify in Paula Jones v. William Jefferson
    Clinton, a civil matter then pending in the United States
    District Court for the Eastern District of Arkansas.  The
    subpoena requested, among other things, documents relating
    to an alleged relationship between President Clinton and
    Lewinsky and any gifts the President may have given her.
    Lewinsky retained Francis D. Carter, Esq., to represent her
    regarding the subpoena.
    Carter drafted an affidavit for Lewinsky, which she signed
    under penalty of perjury.  The affidavit, submitted to the
    Arkansas district court as an exhibit to Lewinsky's motion to
    quash the subpoena, states in relevant part:
    I have never had a sexual relationship with the Presi-
    dent, [and] he did not propose that we have a sexual
    relationship....  The occasions that I saw the President
    after I left my employment at the White House in April,
    1996, were official receptions, formal functions or events
    related to the U.S. Department of Defense, where I was
    working at the time.  There were other people present
    on those occasions.
    On January 16, 1998, at the request of the Attorney
    General, a Special Division of this Court expanded the juris-
    diction of the Office of Independent Counsel to include "au-
    thority to investigate ... whether Monica Lewinsky or others
    suborned perjury, obstructed justice, intimidated witnesses,
    or otherwise violated federal law ... in dealing with wit-
    nesses, potential witnesses, attorneys, or others concerning
    the civil case Jones v. Clinton."  Order of the Special Divi-
    sion, Jan. 16, 1998.  On February 2 and 9, 1998, as part of
    that investigation, a grand jury issued subpoenas to Carter,
    the first for documents and other items, the second for his
    testimony.  Carter moved to quash the subpoenas, contend-
    ing, inter alia, that the documents, testimony, and other
    items sought were protected from disclosure by the attorney-
    client privilege, the work-product privilege, and Lewinsky's
    Fifth Amendment privilege against self-incrimination.  Lew-
    insky, as the real-party-in-interest, filed a response in support
    of Carter's motion.  The United States opposed the motion,
    arguing among other things that the crime-fraud exception
    vitiated any claims of attorney-client or work-product privi-
    lege and that the Fifth Amendment did not bar production of
    the requested materials.  The district court ordered Carter to
    comply with the two grand jury subpoenas except to the
    extent that compliance would "call for him to disclose materi-
    als in his possession that may not be revealed without violat-
    ing Monica S. Lewinsky's Fifth Amendment rights."
    Carter and Lewinsky argue in separate appeals that the
    district court erred in rejecting their motions to quash the
    grand jury subpoenas in their entirety.  In its cross-appeal,
    the United States, through the Office of Independent Coun-
    sel, claims that the Fifth Amendment does not bar production
    of any of the materials the grand jury subpoenaed from
    Carter.
    We dismiss Carter's appeal for want of jurisdiction.  Well-
    settled law dictates that "one to whom a subpoena is directed
    may not appeal the denial of a motion to quash that subpoena
    but must either obey its commands or refuse to do so and
    contest the validity of the subpoena if he is subsequently cited
    for contempt on account of his failure to obey."  United
    States v. Ryan, 
    402 U.S. 530
    , 532 (1971);  see Cobbledick v.
    United States, 
    309 U.S. 323
    , 328 (1940);  In re Sealed Case,
    
    107 F.3d 46
    , 48 n.1 (D.C. Cir. 1997).  Rather than risking
    contempt, Carter has sworn that he will comply with the
    subpoenas if ordered to do so.1
    Our jurisdiction over Lewinsky's appeal is another matter.
    Lewinsky is the holder of the privilege.  Given Carter's
    sworn declaration that he will give testimony if ordered, she
    is entitled to appeal the district court's ruling rejecting Car-
    __________
    1 In addition to adopting Lewinsky's arguments regarding the
    crime-fraud exception, Carter claims that the subpoenas are over-
    broad, unreasonable, and oppressive and that the district court's
    reliance on the Independent Counsel's ex parte submissions in
    enforcing the subpoenas violated due process.  Contrary to Carter's
    contention, the issues he seeks to present are thus neither "virtually
    identical" to, nor "inextricably intertwined" with, those Lewinsky
    raises.
    ter's assertion of the privilege.  See In re Sealed 
    Case, 107 F.3d at 48
    n.1.
    The district court held that the crime-fraud exception to
    the attorney-client privilege applied.  After reviewing the
    government's in camera submission, the court found that
    "Ms. Lewinsky consulted Mr. Carter for the purpose of
    committing perjury and obstructing justice and used the
    material he prepared for her for the purpose of committing
    perjury and obstructing justice."2  Lewinsky tells us she
    could not have committed either crime:  the government could
    not establish perjury because her denial of having had a
    "sexual relationship" with President Clinton was not "materi-
    al" to the Arkansas proceedings within the meaning of 18
    U.S.C. s 1623(a);  and her affidavit containing this denial
    could not have constituted a "corrupt[ ] ... endeavor[ ] to
    influence" the Arkansas district court within the meaning of
    18 U.S.C. s 1503.  Both of Lewinsky's propositions rely on
    the Arkansas district court's ruling on January 30, 1998, after
    Lewinsky had filed her affidavit, that although evidence con-
    cerning Lewinsky might be relevant, it would be excluded
    from the civil case under Fed. R. Evid. 403 as unduly prejudi-
    cial, "not essential to the core issues in th[e] case," and to
    prevent undue delay resulting from the Independent Coun-
    sel's investigation.3
    A statement is "material" if it "has a natural tendency to
    influence, or was capable of influencing, the decision of the
    tribunal in making a [particular] determination."  United
    States v. Barrett, 
    111 F.3d 947
    , 953 (D.C. Cir.), cert. denied,
    
    118 S. Ct. 176
    (1997).  The "central object" of any materiality
    inquiry is "whether the misrepresentation or concealment was
    predictably capable of affecting, i.e., had a natural tendency
    __________
    2 The district court did not find, nor did the Independent Counsel
    suggest, any impropriety by Carter.
    3 Lewinsky does not appear to contest directly the district court's
    finding that she made one or more false statements in her sworn
    affidavit.  Even so, we have independently reviewed the in camera
    materials considered by the district court and conclude that suffi-
    cient evidence existed to support the court's finding.
    to affect, the official decision."  Kungys v. United States, 
    485 U.S. 759
    , 771 (1988).  Lewinsky used the statement in her
    affidavit, quoted above, to support her motion to quash the
    subpoena issued in the discovery phase of the Arkansas
    litigation.  District courts faced with such motions must
    decide whether the testimony or material sought is reason-
    ably calculated to lead to admissible evidence and, if so,
    whether the need for the testimony, its probative value, the
    nature and importance of the litigation, and similar factors
    outweigh any burden enforcement of the subpoena might
    impose.  See Fed. R. Civ. P. 26(b)(1), 45(c)(3)(A)(iv);  Linder v.
    Department of Defense, 
    133 F.3d 17
    , 24 (D.C. Cir. 1998);  see
    generally 9A Charles Alan Wright & Arthur R. Miller,
    Federal Practice and Procedure s 2459 (2d ed. 1995).
    There can be no doubt that Lewinsky's statements in her
    affidavit were--in the words of Kungys v. United States--
    "predictably capable of affecting" this decision.  She executed
    and filed her affidavit for this very purpose.
    As to obstruction of justice, 18 U.S.C. s 1503 is satisfied
    whenever a person, with the "intent to influence judicial or
    grand jury proceedings," takes actions having the "natural
    and probable effect" of doing so.  United States v. Aguilar,
    
    515 U.S. 593
    , 600 (1995) (citations and quotation marks omit-
    ted);  see United States v. Russo, 
    104 F.3d 431
    , 435-36 (D.C.
    Cir. 1997).  Our review of the in camera materials on which
    the district court based its decision convinces us that the
    government sufficiently established the elements of a viola-
    tion of s 1503.  That is, the government offered "evidence
    that if believed by the trier of fact would establish the
    elements of" the crime of obstruction of justice.  In re Sealed
    
    Case, 107 F.3d at 50
    (citation and quotation marks omitted);
    see In re Sealed Case, 
    754 F.2d 395
    , 399-400 (D.C. Cir. 1985)
    (same).
    Lewinsky maintains that the district court erred in treat-
    ing, as admissible for in camera review, transcripts of taped
    conversations between Lewinsky and Linda Tripp.  She relies
    on the following statement in United States v. Zolin, 
    491 U.S. 554
    , 575 (1989):  "the threshold showing to obtain in camera
    review may be met by using any relevant evidence, lawfully
    obtained, that has not been adjudicated to be privileged."
    Zolin, and the statement just quoted, dealt with a rather
    different problem than the one presented here.  Sometimes a
    party seeking to overcome the privilege by invoking the
    crime-fraud exception asks the district court to examine in
    camera the privileged material to determine whether it pro-
    vides evidence of a crime.  The issue Zolin addressed is
    under what circumstances a district court should undertake
    such in camera review.  Zolin's answer, as the quotation
    indicates, was that the court should do so only when there has
    been a threshold showing through evidence lawfully obtained.
    See In re Grand Jury Proceedings, 
    33 F.3d 342
    , 350 (4th Cir.
    1994).  In this case, the district court reviewed in camera not
    the allegedly privileged material, but other evidence intended
    to establish that the crime-fraud exception applied.  In any
    event, even if Zolin applied, Lewinsky gains nothing from the
    decision.  She maintains that the Tripp tapes were not "law-
    fully obtained" and therefore should not have been considered
    in camera.  But the government satisfied its burden wholly
    apart from the Tripp tapes.  Other government evidence--
    consisting of grand jury testimony and documents--estab-
    lished that the crime-fraud exception applied.  Because that
    other evidence, if believed by the trier of fact, combined with
    the circumstances under which Lewinsky retained Carter,
    would establish the elements of the crime-fraud exception,
    there is no reason for us to consider her arguments about the
    tapes.4
    Lewinsky raises other objections to the district court's
    decision, including the argument that production of the sub-
    __________
    4 Lewinsky's brief suggests, in a short passage, that other evi-
    dence obtained by the grand jury is tainted by the alleged illegality
    of the Tripp tapes.  United States v. Callandra, 
    414 U.S. 338
    (1974),
    refused to extend the exclusionary rule--and hence doctrines such
    as the fruit-of-the-poisonous-tree--to grand jury proceedings.  No
    grand jury witness may refuse to answer questions on the ground
    that the questions are based on illegally obtained evidence.  
    See 414 U.S. at 353-55
    .  It follows that regardless of the legality of the
    Tripp tapes, the grand jury did not unlawfully obtain the other
    evidence presented to the district court in camera.
    poenaed materials would violate her Fifth Amendment privi-
    lege against self-incrimination.  Our resolution of the cross-
    appeal, discussed next, disposes of that claim.  As to the
    remainder of Lewinsky's arguments, we have accorded each
    of them full consideration and conclude that none has merit.5
    This brings us to the Independent Counsel's cross-appeal.
    The district court ruled that compelling Carter to produce
    materials his client gave him would violate Lewinsky's Fifth
    Amendment privilege because it would compel her to admit
    the materials exist and had been in her possession.  The
    Supreme Court foreclosed that line of reasoning in Fisher v.
    United States, 
    425 U.S. 391
    (1976).  Documents transferred
    from the accused to his attorney are "obtainable without
    personal compulsion on the accused," and hence the accused's
    "Fifth Amendment privilege is ... not violated by enforce-
    ment of the [subpoena] directed toward [his] attorneys.  This
    is true whether or not the Amendment would have barred a
    subpoena directing the [accused] to produce the documents
    while they were in his hands."  
    Id. at 398,
    397;  see also
    Couch v. United States, 
    409 U.S. 322
    , 328 (1973).
    Regardless whether Lewinsky herself would have been able
    to invoke her Fifth Amendment privilege, but see Andresen v.
    Maryland, 
    427 U.S. 463
    , 473-74 (1976), the district court's
    refusal to order full compliance with the subpoenas could be
    sustained only if the materials sought fell under a valid claim
    of attorney-client privilege.  See 
    Fisher, 425 U.S. at 403-05
    ;
    see also In re Feldberg, 
    862 F.2d 622
    , 629 (7th Cir. 1988).
    But the district court held, correctly, that no valid attorney-
    client privilege existed.  Under Fisher, the district court
    therefore should have denied the motions to quash in their
    entirety.6
    __________
    5 In her reply brief, Lewinsky argues for the first time that the
    district court should have permitted her to examine the material the
    court reviewed in camera.  This argument comes too late to be
    considered.  See Rollins Envtl. Servs. (NJ) Inc. v. EPA, 
    937 F.2d 649
    , 652 n.2 (D.C. Cir. 1991).
    6 As respondent in the cross-appeal, Carter makes additional
    arguments against the applicability of the crime-fraud exception.
    But because the only issue in the cross-appeal is the applicability of
    Accordingly, we affirm in part and reverse in part the
    order of the district court and remand the case for proceed-
    ings consistent with this opinion.  No. 98-3053 is dismissed.
    The mandate shall issue seven days after the date of this
    opinion.  See Fed. R. App. P. 41(a);  D.C. Cir. R. 41(a)(1);
    Johnson v. Bechtel Assocs. Prof'l Corp., 
    801 F.2d 412
    , 415
    (D.C. Cir. 1986);  Public Citizen Health Research Group v.
    Auchter, 
    702 F.2d 1150
    , 1159 n.31 (D.C. Cir. 1983).
    So ordered.
    __________
    the Fifth Amendment, Carter may not use the cross-appeal to press
    arguments we will not consider in his direct appeal.  See Grimes v.
    District of Columbia, 
    836 F.2d 647
    , 651-52 (D.C. Cir. 1988).