Fumo - Def Mot To Quash Gov Subpoena On Sprague

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v.

:

VINCENT J. FUMO,

: : :

Defendant.

:

No. 06-CR-319-03 (William H. Yohn, Jr., J.) FILED ELECTRONICALLY

MOTION OF DEFENDANT FUMO TO QUASH GOVERNMENT’S TRIAL SUBPOENA DUCES TECUM ADDRESSED TO HIS FORMER COUNSEL, SPRAGUE & SPRAGUE Pursuant to Fed.R.Crim.P. 17(c) and the Sixth Amendment, the defendant, Vincent J. Fumo, moves to quash the subpoena duces tecum delivered on Saturday afternoon, September 7, 2008, to the law firm of Sprague & Sprague, requiring the production of extensive documents and files at 9:30 a.m. on Monday, September 8, 2008. In support of this motion, the defendant states: 1. On February 6, 2007, defendant Fumo was charged in 139 counts of a 264page, 141-count Indictment. Offenses charged include three separate conspiracies under 18 U.S.C. § 371; three separate mail and wire fraud schemes, 18 U.S.C. §§ 1341, 1343; two counts of causing false tax filings, 26 U.S.C. § 7206(2); and obstruction of justice, 18 U.S.C. §§ 1512, 1519. 2. Trial is due to begin with jury selection today, Monday, September 8, 2008. 3. On Friday, September 5, 2008, the defendant voluntarily disclosed his intention to rely, as part of his defense on certain counts, on legal advice he had received from his former counsel at the law firm of Sprague & Sprague -- Richard A. Sprague, Esq., in particular -- prior to February 18, 2005. A copy of the letter making this disclosure is attached as Exhibit A. The defendant’s waiver of attorney-client privilege was limited by time and subject matter.

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4. On the afternoon of Saturday, September 6, 2008, the government e-mailed a subpoena duces tecum to the "Custodian of Records" at Sprague & Sprague, demanding that this person appear and testify in Courtroom 17A at 9:30 a.m. on September 8, 2008. At or about the same time, government counsel e-mailed a copy of the subpoena to the defendant’s present counsel. A copy of the subpoena is attached as Exhibit B. The defendant is not aware whether this subpoena has been served, or whether the Sprague firm may have accepted delivery or service by e-mail. 5. The subpoena is "unreasonable [and] oppressive," in violation of Rule 17(c), in that: a. The subpoena could not under any circumstances be complied with during the time allowed; b. The subpoena on its face amounts to a prohibited "fishing expedition" or improper attempt at discovery, rather than a request for specified material that is intended to be offered and would be admissible as evidence; c. The subpoena fails to reflect any good faith attempt to narrow its scope to matters related to the stated subject-matter of the defendant’s privilege waiver, but rather calls on its face for production of material as to which Sen. Fumo has not waived the attorney client privilege; and d. The subpoena’s overbreadth violates the defendant’s Sixth Amendment right to counsel, by demanding disclosure of attorney work product, including extensive documentation of both pre- and post-indictment preparation and theorizing. 6. The extent to which the subpoena exceeds any proper application of Rule 17(c) and any reasonable interpretation of the scope of the defendant’s waiver of privilege requires that the subpoena be quashed and not merely modified.

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WHEREFORE, for the foregoing reasons, as elaborated in the accompanying preliminary memorandum of law, the government’s subpoena duces tecum should be quashed. Respectfully submitted, Dated: September 8, 2008 PETER GOLDBERGER PA Atty. No. 22364 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200 fax: (610) 649-8362

s/Peter Goldberger DENNIS J. COGAN DENNIS J. COGAN & ASSOC. 2000 Market St., suite 2925 Philadelphia, PA 19103 (215) 545-2400 fax: (215) 988-1842

By:

e-mail: [email protected]

e-mail: [email protected]

STEPHEN ROBERT LaCHEEN LaCheen Dixon Wittels & Greenberg, LLP 1429 Walnut Street, 13th Floor Philadelphia, PA 19102 (215) 735-5900 fax: (215) 561-1860 e-mail: [email protected]

Attorneys for Defendant Vincent J. Fumo CERTIFICATE OF SERVICE On September 8, 2008, I served a copy of the foregoing document through the Court’s electronic filing system on the attorneys for the government and on counsel for the affected prior counsel, addressed as follows: John J. Pease, Esq. Robert A. Zauzmer, Esq. Assistant U.S. Attorneys 615 Chestnut Street, suite 1250 Philadelphia, PA 19106

Mark B. Sheppard, Esq. Sprague & Sprague 135 So. 19th St., Suite 400 Philadelphia, PA 19103 __s/Peter Goldberger___________

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v.

:

VINCENT J. FUMO,

: : :

Defendant.

:

No. 06-CR-319-03 (William H. Yohn, Jr., J.) FILED ELECTRONICALLY

MEMORANDUM IN SUPPORT OF DEFENDANT FUMO’S MOTION TO QUASH GOVERNMENT’S TRIAL SUBPOENA DUCES TECUM ADDRESSED TO HIS FORMER COUNSEL, SPRAGUE & SPRAGUE The defendant, Vincent J. Fumo, has moved pursuant to Fed.R.Crim.P. 17(c) and the Sixth Amendment to quash the subpoena duces tecum delivered on Saturday afternoon, September 7, 2008, to the law firm of Sprague & Sprague. The subpoena purports to require the production of extensive documents and files at 9:30 a.m. on Monday, September 8, 2008. The motion to quash should be granted. Senator Fumo is charged in 139 counts of a 264-page, 141-count Indictment. The offenses charged include three separate conspiracies under 18 U.S.C. § 371; three separate mail and wire fraud schemes, 18 U.S.C. §§ 1341, 1343; two counts of causing false tax filings, 26 U.S.C. § 7206(2); and obstruction of justice in violation of 18 U.S.C. §§ 1512(b), 1512(c), and 1519. Trial is due to begin with jury selection today, Monday, September 8, 2008. On Friday, September 5, 2008, the defendant voluntarily disclosed to the prosecutors his intention to rely, as part of his defense on certain counts, on legal advice he had received from his former counsel at the law firm of Sprague & Sprague prior to

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February 18, 2005.1 A copy of the letter making this disclosure is attached to his motion. In that letter, he stated, in pertinent part: At trial, in Senator Fumo’s defense with respect to the various charges under 18 U.S.C. §§ 1512 and 1519, we intend to rely, in part, on legal advice that Mr. Fumo received or understood he had received. Specifically, at all relevant times up to February 18, 2005, when the search warrant was served, Mr. Fumo relied upon advice given to him by his long-time attorney and confidant, Richard A. Sprague, that it was permissible under federal law not to retain any document that was not under subpoena. The defense understands that within the limits of this stated time frame and subject matter, our reliance on the advice Senator Fumo received waives the defendant’s attorney-client privilege with Mr. Sprague, such that you may issue trial subpoenas and conduct further searches of seized evidence previously deemed privileged. Motion, Exh. A. The defendant’s waiver of attorney-client privilege was thus expressly limited by time and subject matter. On the afternoon of Saturday, September 6, 2008, the government e-mailed a subpoena duces tecum to the "Custodian of Records" at Sprague & Sprague, demanding that this person appear and testify in Courtroom 17A at 9:30 a.m. on September 8, 2008.2 At or about the same time, government counsel e-mailed a copy of the subpoena to the defendant’s present counsel. In that subpoena, the prosecutors demanded that the records custodian bring to court two categories of material in any of three subject areas. The types of material are: (1) all documents "concerning, reflecting, or relating to" communications between Senator Fumo and his former counsel, and (2) all documents "concerning, reflecting, or relating to" legal research, legal opinions, and legal advice provided to Senator Fumo. The three subject areas covered include not only "[d]ocument retention and destruction policies, practices, and procedures" and "[f]ederal _____________________ 1 The defendant could properly have resisted making any pretrial disclosure of his theory of defense. In the interest of cooperating with efficient management of this unwieldy trial, he took a less strict position. 2 The defendant is not aware whether this subpoena has been served pursuant to Rule 17(d), or whether the Sprague firm may have waived service and accepted delivery or service by e-mail. -2-

criminal laws pertaining to obstruction of justice," but also the entirety of "[t]he federal criminal investigation that led to the current charges in" this case. Moreover, both categories of documents, in all three subject areas, are to be produced "[f]or the period" from February 20, 2003, through September 30, 2007; Motion, Exh. B -- a date nearly eight months after the return of the indictment and more than two and a half years after the termination date given by the defense in its letter. The government’s subpoena so far exceeds any reasonable bounds of a good faith use of Fed.R.Crim.P. 17(c) as to require its quashal rather than a mere modification. Rule 17(c) governs subpoenas duces tecum in federal criminal cases. It deals in a single paragraph with two types of subpoenas. One is the subpoena to appear at trial with documents (as well as to testify, or not; both are allowed). The other, which can be issued only by leave of court ("the court may direct"), may require production of voluminous documents "before the court" prior to trial -- or after trial begins but prior to the time of testimony -- "to be inspected by the parties and their attorneys" (not ex parte, in other words), in order to save trial time and delay. See 2 C.A. Wright, Federal Practice & Procedure: Criminal § 274 (3d ed. 2000). Since the government did not seek leave of court for early production under the third sentence of Rule 17(c), it follows that the present subpoena is intended to be of the ordinary type.3 In United States v. Cuthbertson, 630 F.2d 139, 145 (3d Cir. 1980), the Third Circuit approved a modified adaptation of the third-sentence type of subpoena, where documents can be ordered produced to the judge prior to their use at trial, but without their being disclosed to the party subpoenaing them, in order to facilitate the litigation of a motion to quash or modify. _____________________ 3 The fact that the paper on its face gives the date of the first day of trial does not make it a third-sentence subpoena. It is common for trial subpoenas to be issued with a return date and time identical with the commencement of the trial, which obligates the person to appear, on call, whenever during trial the evidence is to be offered. Although no such accommodation language appears on the face of this subpoena, the same idea may have been communicated informally to the custodian of records. -3-

A Rule 17(c) subpoena is not a discovery device and cannot be used as such, United States v. Nixon, 418 U.S. 683, 699-700 (1974), or to engage in a "fishing expedition." See United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998); Cuthbertson, 630 F.2d at 192; see generally Gov’t Mem. in Supp. of Motion to Quash (Doc. 237), at 4-7 (filed Aug. 8, 2008). Only material "admissible as evidence" can be subpoenaed. United States v. Cuthbertson (II), 651 F.2d 189, 195 (3d Cir. 1981).4 This subpoena on its face flouts the established restrictions. Its form is patently that of a grand jury or discovery subpoena, not a subpoena for specific items admissible at trial. By virtue of its breadth and lack of specificity, attempting to reach documents and files of all sorts if they merely "relate to" the stated subject matters, encompassing a vast amount of work product and other opinion, and hearsay, regardless of whether it even ever came to Senator Fumo’s attention, this subpoena badly fails the "evidentiary" test. Even more important, the subpoena fails to reflect any good faith attempt to narrow its scope to matters within the stated subject-matter of the defendant’s privilege waiver. Instead, the subpoena calls on its face for production of material as to which Sen. Fumo has not waived the attorney client privilege. As is clear from his letter, the defendant understands that "by asserting ‘claims or defenses that put his or her attorney’s advice in issue in the litigation,’" he waives the privilege pro tanto. However, the waiver applies only "as to that issue." United States Fire Ins. Co. v. Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir. 1999) (Alito, J.), citing Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 537 (3d Cir. 1996). In Livingstone, the Court found no error in a ruling allowing a civil plaintiff’s former criminal defense _____________________ 4 Under that case, a Rule 17(c) subpoena may properly issue for specified impeachment material, but may not require its production before trial under the third sentence of the Rule, as such material does not ripen into "evidence" until the witness testifies. See also Nixon, 418 U.S. at 701. In Cuthbertson, the Court thus held that the district court had properly quashed the subpoena to the extent that it required pretrial disclosure, but allowed production under that subpoena at trial, after the witness testified. 630 F.2d at 145. -4-

attorney, who had negotiated on her behalf a certain release in connection with the dismissal of the criminal case, to be deposed and then questioned at a hearing about whether the client understood the release, after she later claimed she had signed it involuntarily. The Court of Appeals ruled that it would be "unfair to allow her to make this claim," without disclosing "her attorney’s version of the relevant events." Id. at 537 (emphasis added). The Court "emphasize[d] that this waiver is a limited one." Id. 537 n.37 (Pollak, J.). It applies "‘only as to information for which the [other party] had ‘shown a true need and without which they would be unfairly prejudiced ....’" Id. (quoted source omitted). Of course, a party asserting privilege cannot narrow the waiver to a particular document if in fairness, that document raises questions about the whole of a certain transaction. In that case, within the bounds of the applicable discovery rule, all communications concerning that transaction may be disclosed. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 486-87 (3d Cir. 1995). Even in the broad context of civil discovery, however, where the very different standard of Fed.R.Civ.P. 26(b)(1) applies, rather than Criminal Rule 17(c), a mere showing of relevance cannot expand the scope of a waiver of attorney-client privilege. See RhonePoulanc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 861-65 (3d Cir. 1994). Here, the "issue" as to which Senator Fumo will rely (in part) on the advice of counsel is the permissibility of continuing or intensifying a policy of non-retention of email, under circumstances which applied prior to February 18, 2005. The entire preand post-indictment file of his criminal defense lawyers, containing everything so much as "relating to" the "federal criminal investigation that led to the current charges" -which would be the entirety of their file -- goes wildly beyond that "subject," the same "transaction" or "that issue." Instead, the government’s subpoena, as framed or as it might be "modified," would sweep so broadly as to utterly destroy the constitutionally protected attorney-client relationship guaranteed by the Sixth Amendment. For example, it openly demands disclosure of attorney work product, including extensive

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documentation of both pre- and post-indictment preparation and theorizing. Yet there is not even a pretense of specificity in the subpoena’s description of documents to be produced, pointing to anything which would be admissible at the government’s behest at trial to prove any alleged obstructive intent or lack of good faith. In all these ways, the subpoena addressed to Sprague & Sprague is "unreasonable [and] oppressive," in violation of Rule 17(c). It cannot be modified; it would have to be rethought and rewritten entirely. That is a task for the government, not for the Court. Accordingly, the subpoena must be quashed. Respectfully submitted, Dated: September 8, 2008 PETER GOLDBERGER PA Atty. No. 22364 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200 fax: (610) 649-8362

s/Peter Goldberger DENNIS J. COGAN DENNIS J. COGAN & ASSOC. 2000 Market St., suite 2925 Philadelphia, PA 19103 (215) 545-2400 fax: (215) 988-1842

By:

e-mail: [email protected]

e-mail: [email protected]

STEPHEN ROBERT LaCHEEN LaCheen Dixon Wittels & Greenberg, LLP 1429 Walnut Street, 13th Floor Philadelphia, PA 19102 (215) 735-5900 fax: (215) 561-1860 e-mail: [email protected]

Attorneys for Defendant Vincent J. Fumo

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