United States v. Robert Swinehart, No. 79-1515, and Appeal of Robert Perry, No. 79-1463

SLOVITER, Circuit Judge,

concurring and dissenting.

I concur in all parts of the majority opinion except footnote 1 dealing with the second issue raised by appellant Swinehart. He claims that the Government surreptitiously recorded conversations between him and his attorney, that those conversations were used to induce the trial court to double the previously agreed upon sentence) and that the actions of the Government in this respect constituted such an egregious intrusion into the confidential relationship between him and his attorney that he is entitled to dismissal of all charges against him. The Government admits that Kafrissen, a shareholder of Hourly Messengers, Inc. who also served as its attorney, agreed to and did record conversations which he had with Swinehart, that transcripts of some of these conversations were marked as exhibits for use at trial, and that at the hearings on appellants’ motions to withdraw their guilty pleas they were used for the purpose of showing inconsistencies between the facts as they were told to Kafrissen and as they were given to the Government polygrapher. The Government argues that Swinehart failed to prove an attorney-client relationship between him and Kafrissen, and that he waived any objection to the use of these taped conversations because he failed to invoke the claim of attorney-client privilege or violation of his rights under the Sixth Amendment at the time the transcripts were originally marked as exhibits. It admits that Swinehart did claim attorney-client privilege in objecting to the introduction of the transcripts at the hearings on appellants’ motions to withdraw their guilty pleas. Swinehart argues that there was no need to object to the marking of the transcripts for the trial proceeding because the Assistant U.S. Attorney had represented that the transcripts would not be used as part of the Government’s evidence in chief, and Swinehart attaches to his reply brief on appeal an affidavit to that effect by his trial counsel.

The record on these issues is not complete. It is not clear whether the relationship between Swinehart and Kafrissen was that of client and attorney, or whether, even if not, the statements of Swinehart were made under circumstances which would entitle him to a reasonable expectation that they were protected communications. The facts on possible waiver of his rights by Swinehart have not been developed. Since all members of the panel agree that this case should be remanded for hearing on the issue of the plea agreement, I would also remand for determination of the nature of the relationship between Swine-hart and Kafrissen. The burden is on Swinehart to prove the existence of an attorney-client relationship. In re Grand Jury Empanelled February 14, 1978: Markowitz, 603 F.2d 469, 474 (3d Cir. 1979). The relationship may have been that of two business colleagues concerned about possible investigation. See, e. g. United States v. Stern, 511 F.2d 1364 (2d Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 47, 46 L.Ed.2d 46 (1975). On the other hand, if the relationship between Swinehart and Kafrissen was a confidential one, then the court would have to determine whether its invasion by the Government was intentional or prejudicial, see Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), whether Swinehart preserved his rights, and if so, the appropriate sanction to be applied. See O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967) (per curiam); Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966) (per curiam). These issues should be considered in the first instance by the trial court.

The allegations by Swinehart charge purposeful governmental intrusion into the privacy of the attorney-client communications. They may prove to be without foundation in fact. However, if proven, they would represent serious Government misconduct meriting effective judicial response. At a minimum, appellant Swinehart is entitled to a hearing at which there can be full-scale development of the facts. O’Brien v. United States, 386 U.S. at 346, 87 S.Ct. 1158 (Harlan, J., dissenting); Black v. United States, 385 U.S. at 31, 87 S.Ct. 190 (Harlan, J., dissenting).