United States v. Almeida , 341 F.3d 1318 ( 2003 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 18, 2003
No. 01-11553
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00054-CR-UUB
UNI TED STA TES OF A MER ICA,
Plaintiff-Appellee-
Cross- Appe llant,
versus
JUA N AL MEI DA,
Defendant-Appellant-
Cross- Appe llee.
_______________________
No. 01-13235
________________________
No. 97-00054-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ALMEIDA,
Defen dant-A ppellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 18, 2003)
Before TJOFLAT and BARKETT, Circuit Judges, and WEINER*, District Judge.
TJOFLA T, Circuit Judge:
I.
On March 10, 1998, a federal grand jury sitting in the Southern District of
Florida issued a th irty-coun t superse ding ind ictment alle ging tha t the defen dant in
this case, Ju an Alm eida, com mitted sev eral crime s when he mad e arrang ements to
distribute large quantities of cocaine to New York and Russia. Almeida was
charged in nine of the thirty counts, 1 and he was ultimately convicted on count two
(cocaine conspiracy). The jury returned verdicts of not guilty on the remaining
*
Honorable Charles R. Weiner, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
1
Almeida was charged with the following: conspiring to engage in a racketeering
conspiracy in violation of 18 U.S.C. § 1962(d) (count one); conspiring to possess with intent to
distribute large quantities of cocaine in violation of 21 U.S.C. § 846 (count two); unlawful use of
a telephone to facilitate the drug conspiracy in violation of 21 U.S.C. § 843(b) (counts sixteen
and nineteen); and interstate and foreign travel with the intent to facilitate the drug conspiracy in
violation of 18 U.S.C. § 1952 (counts twenty, twenty-one, twenty-two, twenty-three, twenty-
four, and twenty-five).
2
counts, s ave for th ose wh ich the G overnm ent dism issed prio r to trial. 2
The conspiracy to distribute cocaine allegedly encompassed three ventures
that wer e under taken be tween 1 986 an d 1995 . The firs t venture , the Go vernm ent
contends, took place in the late 1980's when Almeida, along with fugitive co-
conspirator Nelson “Tony” Yester, coordinated the transportation of several
shipments of cocaine from Miami to New York.3 The second venture entailed a
grandiose scheme to acquire a World War II–era Russian submarine for a
Colombian drug cartel. The third venture involved a plan to conceal cocaine inside
Russia-bound shipments of shrimp. The Government’s “star” witness with respect
to the sub marine a nd shrim p ventu res was one Lu dwig “T arzan” F ainberg , a
Russian -speakin g immig rant wh o was c harged in the con spiracy an d ultimate ly
plead gu ilty pursu ant to a ple a agreem ent.
Almeida and Fainberg each hired their own defense attorneys. They
believed, however, that some coordination might be useful in defeating the
Government’s case – particularly since many of the Government’s exhibits were
2
The Government dismissed counts one and twenty.
3
The Government’s proof as to this phase of the conspiracy was presented primarily
through the testimony of Alexis de la Nuez and Ricardo Olmedo, both of whom were supposedly
involved in the cocaine deliveries. These alleged cocaine traffickers will appear again in this
opinion, because Almeida claims that an erroneous evidentiary ruling by the district court
precluded him from exposing a de la Nuez-Olmedo conspiracy to fabricate testimony in an effort
to curry favor with the Government and thereby get a reduction in their prison sentences.
3
recordings of Russian conversations and Fainberg was fluent in the language.4 The
co-defe ndants th erefore e ntered in to an ora l joint defe nse agre ement. A ccordin g to
Almeida’s counsel, “countless volumes of attorney-client and work product
information [were] . . . shared between the parties” and “dozens of meetings
(totaling w ell over 1 00 hou rs) wer e held.”
On February 19, 1999, approximately one month before trial, Fainberg
decided to defect from the united fron t. In return for his testimony against
Almeida, the Government allowed Fainberg to plead to a single count of
racketeering.5 In the Government’s view, this change of heart required the district
court to address two key issues – n amely, the alleged existence of an attorney-
client priv ilege and a possib le conflict o f interest.
Durin g the G overnm ent’s case in chief, the p rosecuto r inform ed the co urt in
4
Almeida had the most to gain from any coordination due to Fainberg’s ability to speak
the Russian language, although Fainberg presumably received some benefits, such as the ability
to coordinate a consistent story with his co-defendant.
5
In addition to seeking dismissal of counts two through thirty of the indictment, the plea
agreement also contained the following promise:
If in the sole and unreviewable judgment of this Office the defendant’s
cooperation is of such quality and significance to the investigation or prosecution
of other criminal matters as to warrant the Court’s downward departure from a
sentence required by the Sentencing Guidelines, this Office may: 1) at or before
sentencing make a motion . . . recommending that the Court sentence the
defendant within a guideline range of Level 28; 2) recommend to the appropriate
federal agencies that the defendant be considered for an S visa, if he meets their
other criteria; and, 3) recommend to the appropriate federal agencies that the
defendant and members of his immediate family residing in the United States be
considered for admission into the Witness Security Program, if appropriate.
4
the absence of the jury that Fainberg would be her next witness and that she
expected him to assert his “attorney-client privilege” with Almeida’s counsel. The
following court-counsel colloquy ensued. The prosecutor said that when Fainberg
spoke to Almeid a’s coun sel in con nection w ith the join t defense , “it was jus t as if
[Fainberg] was talking to his own attorney” and “[t]herefore, the attorney client
privilege wo uld exist.” This, ac cording to th e prosecutor , showed that Almeida ’s
counsel w as impaired b ecause of a co nflict of interest. Ho w could A lmeida’s
attorney e ffectively c ross-ex amine F ainberg when Almeid a’s attorne y essentially
represented Almeida and Fainberg? Almeida’s counsel, the prosecutor asserted,
suffered from a classic “divided loyalty” problem. The prosecutor therefore urged
the district court to (1) prohibit Almeida’s lawyers from using any confidential
information they had obtained from Fainberg during the two years in which the
joint defense privilege was in operation and (2) conduct a Rule 44(c)6 hearing so
that the court could either obtain a conflicts waiver from Almeida or else require
the with drawa l of Alm eida’s cou nsel for p urpose s of cros s-exam ining F ainberg .
The court apparently thought that Almeida’s attorney was not laboring under
6
“The court must promptly inquire about the propriety of joint representation and must
personally advise each defendant of the right to the effective assistance of counsel, including
separate representation. Unless there is good cause to believe that no conflict of interest is likely
to arise, the court must take appropriate measures to protect each defendant’s right to counsel.”
Fed. R. Crim. P. 44(c)(2).
5
a conflict of interest; it was concerned, however, abo ut the possibility that in cross-
examining Fainberg, the attorney might elicit or make use of privileged
information. The court therefore decided to hear from Fainberg.7 Fainberg took
the stand and Almeida’s attorney asked that Fainberg summarize the information
that he co nveyed to Alm eida’s def ense team . The pr osecuto r, assum ing the rig ht to
act as Fainberg’s attorney, objected on the grounds that such communications
could not be repeated, lest a revelation of the confidential communications in open
court amount to a waiver. Although Fainberg acknowledged that the information
would be useful both in cross-examining him and other witnesses and in locating
defense witness es, the cou rt sustaine d the pro secutor’s objection .
Referring to the prosecutor’s privilege claim, the court found that a joint
defense agre ement existed a nd conclud ed that this agreem ent precluded Almeida’s
counsel from using any information obtained from Fainberg in connection with the
joint defense. T he court no t only barred co unsel’s use of F ainberg’s
communications during cross-examination,8 but also the derivative use of the
7
The district court received testimony from Fainberg when it conducted a hearing to
ascertain (a) the existence of a joint defense agreement and (b) the extent to which the parties to
the agreement believed that communications would remain confidential.
8
Suppose, for example, that Fainberg made proclamations of Almeida’s innocence during
the joint defense strategy sessions. Such hypothetical statements would have been inconsistent
with the position Fainberg maintained while on the witness stand and might have revealed the
existence of bias stemming from the Government’s offer to advocate a reduction in Fainberg’s
sentence. To be sure, evidence of a plea agreement might, standing alone, tend to show bias. But
6
communications. 9 Defense counsel’s response to the court’s ruling was that the
court would be committing error if it severely limited their ability to cross-examine
Fainberg. Four days later, the court issued a written order (hereinafter “Order”)
that essentially reiterated its ruling from the bench, asserting that “[i]t is a matter of
ethics” and that “[i]n the absence of Fainberg’s attorney, the governm ent, as a
party with an interest, may make objections or arguments to the end of protecting
the privile ge.” 10 Faced with the court’s ruling, Almeida’s counsel advised the court
that they h ad “every intention of follow ing the co urt’s ord er” and w ould “ten d to
ask que stions tha t are not w ithin any a rea that co uld be p rivileged .” The co urt did
not, how ever, req uire the su bstitution of new counse l as the G overnm ent urge d.
Indeed, the court never undertook a Rule 44(c) hearing to ascertain the existence of
a conflict o f interest.
What testimony wo uld have been presented bu t for the Order? O rdinarily,
such a sweeping order would have prevented any sort of proffer, and a reviewing
the existence of a plea agreement in conjunction with an inconsistent story would be much more
effective in establishing bias. The defense might also have been able to point out inconsistencies
between Fainberg’s analyses of the tape recordings made during joint defense strategy sessions
(e.g., identification of certain speakers) and those made during trial.
9
For example, the district court prohibited the use of confidential communications for the
purpose of “identifying and locating defense witnesses.” The court further prohibited the use of
information provided by Fainberg for the purpose of “identifying voices [and] interpreting
conversations heard in the intercepted communications.”
10
The Government ordinarily lacks standing to assert the attorney-client privilege for a
witness. See United States v. Ortega, 150 F.3d 937, 942 (8th Cir. 1998).
7
court co uld only speculate as to wh at might h ave been revealed to the jury . In this
case, however, the post-verdict stage of the litigation provides tremendous insight
into the likely effect of the court’s ruling. After the jury found him guilty of count
two of the indictm ent, Alm eida mo ved the c ourt for a new tr ial. Arm ed with
Fainberg’s signed waiver of any privileges, he asked the court to lift the
restrictions contained in the Order. The court, citing Fainberg’s waiver, lifted the
restrictions. The court also indicated that its trial ruling had been mistaken and that
once Fainberg defected to the prosecutorial camp, he had no privilege with respect
to Alm eida’s cou nsel.
Our first glim pse into wh at would h ave been rev ealed but for th e court’s
exclusionary r uling come s in the form o f Fainberg ’s recantination. H ad Almeid a’s
counsel been able to reveal the statements made by Fainberg during the joint
defense strategy sessions, Fainberg’s statements might have been similar to the
story he told after the jury rendered its verdict. In a post-trial deposition, Fainberg
denied conspiring with Almeida to buy or sell submarines. He claimed that
Almeida was “not gu ilty” of the charges and that the Governm ent concocted a case
based upon Fainberg’s “macho talk” that “nobody believed.” Fainberg recalled
that he related this position to one of Almeida’s lawyers du ring a joint defense
strategy se ssion, bu t that he ha d to chan ge his testim ony in o rder to g et himself
8
“out of the situation.”
We also have a glimpse at what sort of evidence was missing from the jury
room due to the “derivative” component of the Order. Fainberg once advised an
investigator11 that one Armando Fernandez 12 had information about Ricardo
Olmedo and Alexis de la Nuez – the two witnesses instrumental to the
Gove rnmen t’s case con cerning the alleged New York distributio n consp iracy.
After the ban on Almeida’s counsel was lifted, Almeida’s team visited Fernandez,
who claimed that he had seen Olmedo and d e la Nuez colluding to present false
testimony about Almeida in ord er to obtain sentence reductions. 13 Defense counsel
further proffered the corroborating testimony of as many as fifteen other inmates
who allegedly saw Olmedo and de la Nuez “openly talking about Juan Almeida,
and getting the[ir] stories straight” and later “bragging to them about how they lied
against M r. Alme ida.” 14 But for the district court’s exclusionary ruling, the
11
The investigator, retired FBI Agent Robert Whiting, was retained by the joint defense
team. Fainberg’s communications to Whiting about Fernandez could not be utilized by
Almeida’s counsel because of the Order.
12
In the fall of 1998 or early 1999, Armando Fernandez was incarcerated in Miami, along
with Fainberg, Omedo, and de la Nuez.
13
Fernandez also claimed that he revealed the potential perjury of Olmedo and de la Nuez
to the prosecutor and that the prosecutor suggested that he keep quiet.
14
Defense counsel also proffered testimony of various businessmen who had received
telephone calls from Olmedo and de la Nuez just before they testified at trial in order to get
background information about Almeida.
9
defense might have elicited testimony about possible collusion between Olmedo
and de la Nuez to commit perjury – either from Fernandez15 or the fifteen other
witnesses.
II.
Review ing the d istrict cour t’s eviden tiary ruling s for abu se of disc retion, see
United States v. M arshall, 173 F .3d 131 2, 1314 n.3 (11 th Cir. 1999) (citation
omitted), we hold that the court abused its discretion when it precluded Almeida
from utilizing the communications that Fainb erg made to Almeida’s attorneys
while operating under the joint defense agreement. We believe that Fainberg
waived the privile ge wh en he ag reed to p lead guilty and testify against A lmeida in
exchange for the Government’s dismissal of several counts in the indictment. The
district cou rt was co rrect wh en it conc eded in its order d enying a new tria l that its
exclusio nary rulin g was e rroneo us, althou gh the co urt incor rectly con cluded th at its
error was harmless. 16
15
It is not entirely clear whether Fernandez would have testified. According to
Fernandez’s attorney, the prosecutor warned him that “if Mr. Fernandez would testify as a
defense witness to impeach the government witness, he would be committing perjury, and an
investigation would ensue as to whether he perjured himself if he testified as a defense witness.”
It is not surprising, then, that Fernandez’s lawyer advised his client to assert his Fifth
Amendment privilege rather than testify in a post-verdict hearing. Even so, Almeida’s attorneys
claim that Fernandez agreed to testify. Moreover, the Government would be guilty of
misconduct if this threat were actually made. See United States v. Schlei, 122 F.3d 944, 991-93
(11th Cir. 1997); United States v. Heller, 830 F.2d 150, 152-54 (11th Cir. 1987).
16
The district court ultimately held that its error was harmless in light of the “withering”
cross-examination of Fainberg.
10
A.
Like the Government’s contention at trial, Almeida’s principal argument on
appeal fo cuses up on the co nflict of in terest that alle gedly inte rfered w ith the ability
of Alm eida’s cou nsel to eff ectively rep resent the ir client. It is tru e that the S ixth
Amendment right to have the effective assistance of counsel encompasses the right
to have c ounsel u ntainted b y conflicts of interes t. See Holloway v. Arkansas, 435
U.S. 4 75, 98 S . Ct. 117 3, 55 L . Ed. 2d 426 (1 978); Cuyler v. Sullivan, 446 U.S.
335, 100 S. Ct. 170 8, 64 L. Ed. 2d 33 3 (1980). But the case law d oes not address
the much more tenuous claim of ineffective representation that arises in the joint
defense agreem ent scena rio. In the prototyp ical case, an attorney in itially
represents two defendants and is forced to cross-examine one of them in the same
proceeding or a successive proceeding. In such a case, the attorney owes each
client a duty of loyalty. The attorney faces an impossible choice: he can either
vigorously cross-examine the client-turned-witness and thereby violate his duty of
loyalty to the client on the witness stand, or he can temper his cross-examination
and risk violating his duty o f loyalty to th e client on trial. 17
When co-defendants enter into a joint defense agreement, by contrast, each
17
The duty of loyalty sometimes continues even after the attorney-client relationship
ceases to exist, and so conflicts of interest can still arise even if the attorney represents only one
party.
11
defendant retains his own attorney. As we discuss below, confidential
comm unication s made d uring jo int defen se strategy sessions are privile ged. See
Wilson A. Abraham Const. Co. v. Armco Steel Corp., 559 F .2d 250 , 253 (5 th Cir.
1997) ; United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). A duty of
loyalty, ho wever , does no t exist in this situation a nd it is ther efore im proper to
conclud e that all of th e attorney s in the join t defense strategy se ssion rep resent all
of the participating defendants. Any potential conflict of interest arises solely from
the fact tha t when defend ant B becomes a witness for the state, the attorney for
defend ant A must make sure that the attorney-client privilege is respected and that
confidential communications are not revealed. The mere inability to utilize the
privilege d comm unication s is not itself a manife station of a conflict o f interest,
because no lawyer in the w orld could utilize those communications. 18 Rather, the
potential c onflict of interest stem s from th e fact that d efendan t A’s lawyer might be
so tongue-tied (due to his fear of revealing the confidential communications made
by defen dant B) that his re presenta tion of d efendan t A suffers.19 Since the degree
18
Almeida seems to miss this pont. He argues that his attorneys’ inability to reveal and
utilize Fainberg’s communications were the “actual effects” of a conflict of interest. This is
incorrect; if the communications were privileged (a point that we reject, infra), then no attorney
could reveal Fainberg’s communications.
19
Unlike the present case, the attorneys in United States v. Henke, 222 F.3d 633, 638 (9th
Cir. 2000), “told the district court that this was not a situation where they could avoid reliance on
the privileged information and still fully uphold their ethical duty to represent their clients.”
12
to whic h defen dant A’s lawyer is impaired may be de minimis, the rules announced
by Cuyler and Holloway might b e inapplic able (or s ubject to m odificatio n) in this
scenario. We need not decide the issue, however, because we hold that Fainberg
waived his attorney-client privilege when he turned state’s evidence, thereby
entirely rem oving th e possib ility of a con flict of inter est from the case.
B.
The attorney-client privilege is intended to encourage “full and frank
communications between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of justice.” Upjohn
Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584(1981). More broadly, the privilege is grounded “in the interest and administration
of justice, o f the aid o f person s having know ledge of the law a nd skilled in its
practice, which assistance can only be safely and readily availed of when free from
the consequences or the apprehension of disclosure.” Hunt v. Blackburn, 128 U.S.
464, 47 0, 9 S. C t. 125, 12 7, 32 L . Ed. 48 8 (188 8).
When a defendant conveys information to the lawyer of his co-defendant, as
opposed to his own lawyer, the justification for protecting the confidentiality of the
information is weak. The policy of fostering frank communication with an
13
attorney is already facilitated by privileging those communications made to the
defendant’s own attorney; little can be gained by extend ing the privilege those
communications made to attorneys that do not represent the defendant. On the
other hand, in light of the vast resources of the government, it is perhaps
appropriate that co-defendants be given the opportunity to collaborate on defense
tactics and exchange information in a confidential fashion without forcing the
defend ants to hir e the sam e attorney – a situatio n that is alm ost alwa ys ripe w ith
real conflicts of interest. Therefore, many courts have held that the attorney-client
privilege gives rise to a conc omitant “jo int defen se privileg e” whic h “serves to
protect the confidentiality of communications passing from one party to the
attorney for another party where a joint defense effort or strategy has been decided
upon and undertaken by the parties and their respective counsel.” Schwimmer, 892
F.2d at 243. As the Second Circuit observed, “The need to protect the free flow of
information from client to attorney logically exists whenever multiple clients share
a common interest about a legal matter.” Id. at 243-44 (citation and quotation
marks omitted).
The attorney-client privilege is riddled with many exceptions, two of which
are mos t relevant to this case. M any jurisd ictions, inc luding th e forme r Fifth
Circuit, have held that where “the same attorney acts for two or more parties
14
having a common interest, neither party may exercise the privilege in a subsequent
controversy with the other.” Garner v. Wolfinbarger, 430 F .2d 109 3, 1103 (5th
Cir. 197 0). A lea ding trea tise furthe r explain s that “[w ]hen tw o or mo re perso ns . .
. jointly consult an attorney . . and [subsequently] become engaged in a
controversy in which the communications at their joint consultation with the
lawyer may be vitally material,” then it “is clear that the privilege is inapplicable.”
John W . Strong et al., McCormick on Evidence § 91 (5 th ed. 1999). The treatise
asserts tha t there are tw o rationa les for the rule:
In the first place the policy of encouraging disclosure by holding out
the promise of protection seems inapposite, since as between
themselves neither would know whether he would be more helped or
handicapped, if in any dispute between them, both could invoke the
shield of secrecy. And secondly it is said that they had obviously no
intention of keeping these secretes from each other, and hence as
betwee n thems elves it w as not inte nded to be conf idential.
Id.
It is also an ancient rule in many jurisdictions that “where an accomplice
turns state’s evidence and attempts to convict others by testimony w hich also
convicts himself, he thereby waives the privilege against disclosing
communications between himself and counsel.” See W.R. Habeeb, Annotation,
Party’s Waiver of Privilege as to Communications with Counsel by Taking Stand
and Testifying, 51 A.L.R.2d 521 § 4 (1957). In the nearly 150-year-old case of
15
Alderm an v. Pe ople, 4 Mich. 414 (Mich. 1857) (internal citations omitted), for
example, the court said as follows:
But there is a broader ground upon which the admission of the
excluded evidence may be based, and that is, the witness . . . was an
accomplice in the crime for which the defendants, his associates, were
on trial. He had been led to give evidence for the people under an
express or implied promise of pardon, or that he should not be
prosecu ted, on co ndition th at he sho uld mak e a full and fair
confession of the truth. It is a rule of law, that no witness shall be
required to answer any question that may tend to criminate himself,
yet the accomplice, when he enters the witness box with a view of
escaping punish ment him self, by a b etrayal of h is co-w orkers in
crime, yield s up and leaves tha t privilege behind him. H e contrac ts to
make a full statement, to keep back nothing, although in doing so he
may bu t confirm his ow n guilt an d infam y. If he fails to do so in full,
if he knowingly keeps back any portion of the history of the crime he
undertakes to narrate, he forfeits his right to pardon, and may be
proceeded against and convicted upon his own confession, already
made. We think an accomplice who makes himself a witness for the
people s hould b e require d to give a full and comple te statemen t of all
that he and his associates have done or said, relative to the crime
charged , no matte r when or wh ere don e, or to w hom sa id. He sh ould
be allow ed no p rivileged comm unication s. These he has v oluntarily
surrend ered. Th e enforc ement o f such a r ule may b e the only
protectio n the par ty on trial h as left – the only me ans rem aining to
him to meet, it may be, the perjury of the criminal upon the w itness
stand.
Similarly, in the venerable case of Jones v . State , 3 So. 379, 380 (1888) (internal
citations omitted), the court described the waiver that occurs when an accomplice
testifies on behalf of the state:
While th e privileg e may be waived by the clien t, it is genera lly held
16
that he do es not do so mere ly by beco ming a w itness and testifying in
his own behalf. But when one jointly indicted with others turns
state’s evidence, and attempts to convict others by testimony which
also con victs him self, the ru le must b e differen t, and he h as no rig ht to
claim any privilege concerning any of the facts pertinent to the issue,
nor any exemp tion from the broa dest latitud e of cros s-exam ination.
He thereby waives all privilege against criminating himself, and
against disclosing communications between himself and his counsel
touching the offense charged. Both client and counsel may, in such
case, be compelled to disclose such comm unications.
Both exceptions to the attorney-client privilege are open to criticism. By
finding implied w aivers, co urts risk e roding the pub lic’s confid ence that th eir
comm unication s will rem ain conf idential so long as c ommu nicated to a lawyer .
See, e.g., Sutton v. State, 16 Tex. App. 490 (1884) (criticizing the accomplice-
turned-state’s-evidence exception because it erodes the privilege). For this reason,
we do not hold that accomplices always waive the privilege when they testify on
behalf of the government; nor do we hold that persons represented by the same
attorney always waive the privilege in the event that one o f them becomes a
government witness against the other.20 In the join t defense agreem ent conte xt,
however, the policy rationales behind the two exceptions outweigh the minimal
benefit of the attorney-client privilege. As one court recently explained:
Although a limitation on confidentiality between a defendant
and his own attorney w ould pose a severe threat to the true attorney-
20
We do not foreclose such holdings in a future case. The facts of this case, however, do
not require us to establish such a sweeping rule.
17
client relationship, making each defendant somewhat more guarded
about the disclosures he makes to the joint defense effort does not
significan tly intrude on the fu nction o f joint def ense agr eements . . . .
. . . .Co-defendants may eliminate inconsistent defenses without
the same degree o f disclosu re that w ould be required for an atto rney to
adequately represent her client. The legitimate value of joint defense
agreements will not be significantly diminished by including a limited
waiver of confidentiality by testifying defendants for purposes of
cross-examination only.
United States v. Stepney, 246 F. Supp. 2d 1069, 1086 (N. D. Cal. 2003).
III.
We hold that when each party to a joint defense agreement is represented by
his own attorney, and when communications by one co-defendant are made to the
attorneys of other co-defendants, such communications do not get the benefit of the
attorney-client privilege in the event that the co-defendant decides to testify on
behalf of the government in exchange for a reduced sentence.21 The district cou rt’s
error pr evented the introd uction o f crucial ev idence th at wou ld have s ignifican tly
undermined the credibility of three of the G overnment’s key witnesses. Th ere is a
reasonable possibility that the jury would not have convicted Almeida but for the
21
In the future, defense lawyers should insist that their clients enter into written joint
defense agreements that contain a clear statement of the waiver rule enunciated in this case,
thereby allowing each defendant the opportunity to fully understand his rights prior to entering
into the agreement. See, e.g., Stepney, 246 F. Supp. 2d at 1084-86 (requiring that a written joint
defense agreement include a provision that the attorney-client privilege is waived in the event
that a co-defendant takes the stand against his accomplice, and citing the model joint defense
agreement prepared by the American Law Institute and American Bar Association).
18
district court’s erroneous exclusionary ruling. The error was not harmless, and
Almeida’s conviction is therefore VACAT ED and the case is REMAN DED for a
new tria l.22
SO ORDERED.
22
We find it unnecessary to address the parties’ other alleged points of error.
19