United States v. John David Woodall , 438 F.2d 1317 ( 1971 )

COLEMAN, Circuit Judge:

This is the second appearance of this case in this Court. It was first here sub nom. Tucker v. United States, 5 Cir., 1969, 409 F.2d 1291. The detailed history of the matter appears in that opinion. For present purposes it is sufficient to say that Woodall was under three multiple count indictments charging him with robbery of federally insured institutions in or near Birmingham. On February 21 and 23, 1966, on his own motion, under old Rule ll,¹ represented by privately retained counsel, Woodall withdrew his not guilty pleas to two indictments and entered pleas of guilty. The third indictment is still pending in the District Court.

On February 23, 1966, concurrent sentences of twenty years were imposed in each case. It is undisputed that prior to the plea changes the District Court gave Woodall no advice as to the maximum possible penalties he would face upon taking that action.

The prior Court held:

“It is our judgment that this situation requires a remand of the case to the trial court for an evidentiary hearing to determine whether Woodall knew the maximum possible penalties, rather than a reversal by this Court of his convictions. Lane v. United States, 5 Cir., 373 F.2d 570 (1967). It is well settled that a plea of guilty is invalid as not being understandingly entered if the defendant does not know the maximum possible penalty for the offense. Marvel v. United States, 380 U.S. 262, 85 S.Ct. 953, 13 L.Ed.2d 960 (1965). The question, however, is not whether he learned of such penalty from the judge, in a formal proceeding, but whether he had knowledge as to such matter, whether it was from the judge, his lawyer, his bondsman, or from some other source. Kotz v. United States, 8 Cir., 353 F.2d 312 (1965) ; United States v. Kent, 7 Cir., 397 F.2d 446, 451 (1968). Woodall’s case will be remanded to the trial court for the limited purpose of hearing and determining whether he knew the maximum possible penalties for the charges to which he pled guilty. If it should be found that he did not, the trial court will set aside his convictions and grant him a new trial. If it should be found that he did, the judge will make his findings and conclusions, and direct that the record of that proceedings be returned to this Court.”

Upon remand, the government sought to show, and did show, by the testimony of Woodall's former attorney that prior to the entry of the pleas of guilty he advised his client of the maximum applicable penalties. This was done over the repeated objection of Woodall’s present counsel, newly retained to represent him at the hearing. The objection was that such a revelation from such a source violated the attorney-client privilege.

Before the completion of the hearing, but after giving the above testimony, the witness [former counsel] informed the Court that upon a conference with the various atttorneys in the case he was convinced that his testimony did violate the privilege. The District Court, however, announced that he was acting on the command of the mandate from this Court that it be ascertained if Woodall learned of the maximum penalties from his lawyer, his bondsman, or some other source. Therefore, he let the record stand and found that Woodall had been advised by counsel as to the penalties. Inherent in the remand, of course, was the requirement that the question be settled on evidence properly admissible.

The threshold issue, then, is whether the admission of this testimony was erroneous.

On the question of privileged communications, the federal courts follow the law of the state of the forum, Baird v. Koerner, 9 Cir., 1960, 279 F.2d 623, 628.

Alabama has a statute on the subject, Alabama Code, Title 7, Section 438, which provides that:

“No attorney or his clerk shall be competent or compelled to testify in any court in this state, for or against the client, as to any matter or thing knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney, unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing knowledge of which may have been acquired in any other manner.”

In Cooper v. Mann, 1962, 273 Ala. 620, 143 So.2d 637, the Supreme Court of Alabama, interpreted this statute as follows:

“It is generally held, in absence of statute, that communications between attorney and client [emphasis ours] are privileged and neither attorney nor client can be compelled to testify as to the contents of such communications [emphasis ours]. Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548; 58 Am.Jur., Witnesses, Sec. 460.

“The term ‘communication’ imports not only words uttered, but information conveyed by any other means. Therefore, sight is just as privileged as hearing, and privilege applies to all knowledge acquired in either instance, where acquisition is due to the attorney-client relation. 58 Am.Jur., Witnesses, Sec. 486. Acts as well as words fall within the privileged. Ex parte McDonough, 170 Cal. 230, 149 P. 566, L.R.A.1916C, 593.

“Our statute fully recognizes the foregoing principles.” 143 So.2d 638, 639.

Had we been writing as a matter of first impression we might have thought that the federal statutes are matters of public knowledge and could not be the subject of privilege. It is apparent, however, that what the Alabama statute prohibits is the revelation of communications between attorney and client. If there is no fraud, or complicity in a proposed violation of the law, or breach of a duty to the Court, the content of the communication is immaterial. If there is a communication it is privileged. The Supreme Court of Alabama categorically stated that neither attorney nor client can be compelled to testify as to the contents of such communications. We are compelled, therefore, to hold that the testimony of former counsel should not have been admitted over the objection of his erstwhile client.

This leaves the record again devoid of any proof that Woodall was ever informed from any source of the maximum penalties which might flow from the entry of the pleas of guilty.

The mandate of the prior panel of this Court was that if “it should be found that he did not, the trial court will set aside his convictions and grant him a new trial.” It would thus appear that nothing remains to be done on this appeal but to reverse the most recent judgment of the District Court and remand with directions and the appellant be allowed to plead over.²

Reversed and remanded, with directions that the appellant, John David Woodall, be allowed to plead over to the indictments in these cases.

Reversed and remanded, with directions.

ON PETITION FOR REHEARING

The opinion of the Court in this case dated May 18,1970, contained the following language:

“On the question of privileged communications, the federal courts follow the law of the state of the forum, Baird v. Koerner, 9 Cir., 1960, 279 F.2d 623, 628.”

In its petition for rehearing en bane the Government asserts that in criminal prosecutions in the federal courts this question is not governed by state law but by Rule 26, Federal Rules of Criminal Procedure. That rule is as follows:

“In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, 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.”

We observe first that the Government in its original and supplemental brief (when we decided the case) made no mention of Rule 26. It argued that under Alabama law the question of whether counsel advised his client of the maximum penalties for the criminal offenses involved was not privileged. We rejected that argument. Rule 26 is mentioned for the first time in the petition for rehearing.

Under both the state statute and Rule 26 the outcome is the same.

We quote from Baird v. Koerner, supra:

“Confidential communications between client and attorney were privileged under common law. The privilege is of ancient origin. Prichard v. United States, 6 Cir., 1950, 181 F.2d 326, affirmed, 339 U.S. 974, 70 S.Ct. 1029, 94 L.Ed. 1380. The doctrine is subject to statutory regulation and limitation, but except as so modified the statutes are merely declaratory of the common law rule. 97 C.J.S. Witnesses § 276. The doctrine is based on public policy. While it is the great purpose of law to ascertain the truth, there is the countervailing necessity of insuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. This assistance can be made safely and readily available only when the client is free from the consequences of apprehension of disclosure by reason of the subsequent statements of the skilled lawyer.”

In a Dyer Act prosecution in 1967, Love v. United States, 386 F.2d 260, the Eighth Circuit wrote, “This court is bound by the law of the forum state on the question of privileged communications”, citing Baird v. Koerner, supra, and United States v. Pape, 2 Cir., 1944, 144 F.2d 778. The opinion in Love did not mention Rule 26, Federal Rules of Criminal Procedure.

We note also the decision of the Second Circuit in United States v. Kovel, 1961, 296 F.2d 918, 919, contempt proceedings for refusal to answer questions before a grand jury. In Footnote 2, 296 F.2d at 921, the Court stated that

“N.Y. Civil Practice Act, § 353, is a legislative recognition of this principle [the attorney-client privilege]. We doubt the applicability of the New York statute in a Federal grand jury proceeding; plainly, under F.R.Crim. Proc. 26, 18 U.S.C., it would not be applicable in a Federal criminal trial and we cannot believe the framers of the Criminal Rules intended state law to apply in the former case when it would not in the latter. However, decision of the issue is unnecessary, for there is nothing to indicate the New York legislature intended to do more than enact the principles of the common law.”

The Alabama statute, Title 7, Section 438, is declaratory of the law on privileged communications between attorney and client as administered by the courts prior to the enactment of the statute, Ex Parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960).

We hold therefore that under the plain terms of Rule 26, communications from attorney to client, advising a client, are privileged in the federal courts of Alabama. As did the Second Circuit in United States v. Kovel, supra, we find it unnecessary to elaborate any further. We adhere to the result announced in the original opinion.

The Government further contends that the testimony of Woodall’s attorney should be permitted because Woodall’s appeal constitutes an implied attack on the effectiveness of counsel, i. e., any effective counsel would most certainly have advised his client of the prospective penalties. The difficulty with this contention is that Woodall attacked his sentence on the ground that the sentencing court did not advise him of the maximum penalties. The record shows that Wood-all first entered a plea of “not guilty” in September. It was not until the following February that he withdrew that plea and, with the assistance of counsel, entered his plea of “guilty”. The point is that the prior panel in this case, as cited in our original opinion, remanded the case to determine if Woodall had from any source been advised of the máxi-mums. The prior panel was clearly without authority to direct that the question be settled on evidence to be obtained in violation of the law. Of course, it made no such direction.

This leaves only the question of whether the Government should be permitted to open the door slightly by permitting counsel, over his client’s objection, to state only that he did advise of the penalties, without supplying the details. Such a procedure would result in opening the door all the way. It would inescapably involve another question: Whether counsel had correctly stated the penalties ? A slight breach could thus inevitably lead to a total break. As a matter of fact, Woodall claims now that his counsel did not correctly advise him of the penalties.

It is no answer, we think, to say that the contents of a criminal code are in the public domain and not the subject of privileged advice from a lawyer. If that were controlling no defendant need be advised of the penalties. He could be presumed to know them himself, which is not now the law.

Those guilty of bank robberies and other crimes should promptly and relentlessly be brought to justice. In doing this, however, we have other laws designed to reduce the chances of injustice. We are not disposed to begin eroding a rule of ancient origin, grounded on public policy, which is the keystone of the attorney-client relationship, a right stringently guaranteed by the Constitution. The well defined exceptions to the rule were mentioned in the original opinion.

Finally, when we filed our original opinion we were aware of Pollock v. United States, 5 Cir., 1953, 202 F.2d 281, cert. denied 345 U.S. 993, 73 S.Ct. 1133, 97 L.Ed. 1401. In that case, however, the Court held that no confidential communication of an attorney-client relationship was shown by the evidence and, further, the activities were in furtherance of a violation of the law, which the privilege does not protect.

The Petition for Rehearing is denied by the panel.

Denied.

1 . “The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.” Rule 11, Federal Rules of Criminal Procedure, prior to July 1, 1966.

2 . We emphasize that this case is decided as one in which the record fails to reveal that Woodall was advised of the maximum penalties by anybody, in or out of court, prior to the entry of his pleas.

This is not a case in which the defendant was misinformed as to the máximums provided by law but nevertheless was sentenced for less than that of which he had been advised, as well as for less than the permissible maximum. As to such a situation see Eakes v. United States, 5 Cir., 1968, 391 F.2d 287 and Grant v. United States [5 Cir., April 6, 1970] 424 F.2d 273.

See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 [May 4, 1970] to the effect that a plea of guilty must be entered with a sufficient awareness of the likely consequences, page 6, slip opinion.