Grand Jury Investigation

NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
JAN 14 2016
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: GRAND JURY INVESTIGATION, No. 15-50450
D.C. No. 2:15-cm-01014-UA-1
UNITED STATES OF AMERICA,
Appellee, MEMORANDUM*
v.
DOE APPELLANTS AND
CORPORATIONS,
Respondents - Appellants.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 7, 2015
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
This appeal concerns the district court’s order granting the government’s ex
parte motion to compel production of attorney-client documents. In an opinion
filed concurrently with this memorandum disposition, we vacate the order and
remand for the district court to inspect the subpoenaed documents in camera to
determine which specific documents contain communications in furtherance of the
crime-fraud and must be produced. In this memorandum disposition, we affirm
that we have jurisdiction to review this issue, and we affirm the district court’s
conclusion that the government produced sufficient evidence to invoke the crime-
fraud exception to attorney-client privilege.
1. We have interlocutory jurisdiction over this appeal under Perlman v.
United States, 247 U.S. 7 (1918), as to the Doe appellants.1 See United States v.
Krane, 625 F.3d 568, 571–73 (9th Cir. 2010). The government’s argument on
appeal that the Does have not established that they were clients “with respect to the
FDA correspondence at issue,” is inconsistent with its allegations in the district
court that the Does controlled the Corporation entities and directed their lawyers to
use false statements to dissuade the FDA from investigating its advertisements. If
1
All documents in this matter have been filed under seal to protect the
secrecy of the ongoing grand jury proceedings. The true names of the appellants,
appellant corporations, and their former attorneys are not revealed in this
memorandum.
2
we accepted the government’s premise on appeal that the record does not show
who the clients were, we would be compelled to reverse the district court’s crime-
fraud finding, because the crime-fraud exception requires the government to prove
that “the client harbored an improper purpose”—“it is the client’s knowledge and
intent that are relevant.” In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090
(9th Cir. 2007), abrogated in part on other grounds by Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100 (2009).
2. For the reasons given by the district court, we agree that the
government presented sufficient evidence to establish a prima facie case that the
Does sought to use their lawyers “in furtherance of and . . . sufficiently related to
ongoing” crimes, i.e., false statements to and obstruction of the FDA. In re Grand
Jury Proceedings, 87 F.3d 377, 382 (9th Cir. 1996); see 18 U.S.C. § 1001. The
government presented sufficient evidence to establish at least “reasonable cause to
believe,” In re Grand Jury Proceedings, 87 F.3d at 382, that the FDA had
jurisdiction to investigate the misleading advertisements under 21 U.S.C. § 352(q),
whether or not the medical centers were subject to the requirements of 21 U.S.C. §
352(r). Assuming without deciding that the literal-truth defense of Bronston v.
United States, 409 U.S. 352 (1973), applies here, the government presented
sufficient evidence to establish reasonable cause to believe that the Does directed
3
their attorneys to make false statements with the intent to obstruct the FDA
investigation.
3. We reject appellants’ argument that the district court committed
reversible error by not independently addressing the work product privilege. Our
decisions have indicated that the crime-fraud exception applies equally to work
product and attorney-client privileges. See, e.g., United States v. Christensen, 801
F.3d 970, 1004 (9th Cir. 2015); In re Grand Jury Proceedings, 867 F.2d 539,
540–41 (9th Cir. 1989); see also In re Grand Jury Proceedings #5 Empanelled
January 28, 2004, 401 F.3d 247, 251–52 (4th Cir. 2005).2
We AFFIRM the district court’s conclusion that the government established
a prima facie case to invoke the crime-fraud exception.
2
All other arguments made by the parties not addressed by this
memorandum or the concurrently-filed opinion have been considered by the panel
and rejected.
4