Simels Response To Motion To Compel Fees

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. SHAWN GREEN

: : : : :

CRIMINAL NUMBER JFM-07-066

RESPONSE TO GOVERNMENT’S MOTION TO COMPEL PRODUCTION OF INFORMATION FROM DEFENSE COUNSEL On January 21, 2009, the government served1 a subpoena on Defendant’s counsel of record, Robert M. Simels, seeking a wide range of information relating to his representation of Defendant Shawn Green. The defendant’s attorney, in correspondence with the government, explained that he could not comply with the subpoena, as drafted, without infringing on the defendant’s Sixth Amendment right to counsel, as well as the attorney-client privilege. The government responded with a Motion to Compel (Doc. # 97), which seeks an Order from this court compelling the defense attorney to respond to the subpoena. The defendant has requested that the defense attorney not comply with the subpoena, as he insists that this will violate his right to have confidential communications with his attorney and that complying with the subpoena violates his Sixth Amendment right to counsel. The government has been investigating the instant matter for more than two years, with a resultant indictment at some point (defendant has not received a copy of the original indictment from the government), and a superseding indictment in March 2007.

1

The subpoena was sent by certified mail to counsel’s office, and no personal delivery was attempted.

1

The government contends that Mr. Green was a fugitive since March 2007. Three individuals, Yolanda Crawley, Rachel Donnegan, and David Lincoln have been prosecuted, pleaded guilty and were sentenced in early 2008. Instead of making any showing of an “important need” for the subpoenaed information, the government elects to rely upon the Grand Jury’s broad right to investigate, asserting their belief that “during Green’s nearly two-year period as a fugitive, he continued to launder proceeds of illegal activity through known coconspirators in this case.” As two years have indeed elapsed since the last indictment, the government’s assertion without more, makes their contention suspect, and furthermore, if the alleged laundering occurred with “known co-conspirators” there is an alternative source for the information sought. Thus, this Court should reject the government’s Motion to Compel for the following reasons: (1) The subpoena (attached as Exhibit “A”), requires that Defense Counsel provide documentation that would reveal information that could later be used by the government to prosecute the Defendant for additional offenses, thus converting the attorney into a witness for the prosecution. (2) Compliance with the subpoena is designed to, and would necessarily, drive a wedge between the Defendant and his Counsel; (3) The subpoena is being used by the government to investigate a case that has already been indicted;

2

(4) There are alternative means to obtain the requested information not intrusive upon the Sixth Amendment; and (5) Compliance with the subpoena would result in the production of certain information that is covered by the Attorney-Client privilege. (6) Counsel may have a Fifth Amendment right to decline to produce the documents, or to insist on act-of-production immunity, because of the potential exposure that he faces if he were to comply with the subpoena, as written. For these reasons, Defense Counsel has declined to comply with the subpoena and urges the court to deny the government’s Motion to Compel. The defendant’s right to zealous and un-conflicted representation in connection with the pending charges is guaranteed by the Sixth Amendment.

Though the

government has often been successful in the past in convincing courts to enforce subpoenas to attorneys for the production of fee information, recent trends in the United States Supreme Court and other appellate courts cast considerable doubt on the viability of those decisions. Once the attorney provides the information to the grand jury and the prosecutor, there is a reasonable likelihood that the government will then require the attorney to become a witness at trial to authenticate the documents. Obviously, if the government contends (as it does in its moving papers) that fee information – including the timing that the fees were paid, and by whom – is relevant in the investigation and prosecution of Shawn Green, its usefulness, under this logic will not end with the grand jury, but will later be useful and relevant in the trial of the defendant. The attorney, therefore, far from 3

being a zealous advocate for the defendant, becomes the author of evidence that supports his conviction. Indeed, there is no assurance that the government’s first witness will not be Robert Simels, asked to reveal the timing of his retention, the amount of money he was paid, and the fee payors. See, e.g., United States v. Frazier, 944 F.2d 820 (11th Cir. 1991) (fee information relevant at trial). This is not the typical case in which the defendant can only make a speculative argument that disclosure of fee information may lead to disqualification of counsel. For reasons that the defendant is prepared to show the court in camera, this case is exceptional and should be considered in the context of the unique circumstances that the defendant will demonstrate to the court. In support of the government’s motion to compel, they cite See In re Grand Jury Matter (Special Narcotics) (Under Seal), 926 F.2d 348, 351 (4th Cir. 1991). That case certainly upheld a subpoena issued for fee information from the attorneys who were subpoenaed. However, it should be underscored in that case, that Roland Walker and his firm were not Mr. Jackson’s counsel of record, and that their records could clearly be viewed as not impacting on Mr. Jackson’s Sixth Amendment rights at his trial. No one denies that there is no absolute right to prevent disclosure of fee information from an attorney. By contrast, that right is not unfettered. The facts in the instant matter are distinct from In re Grand Jury Matter as demonstrated below. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court announced that any interference with the defendant’s right to counsel of choice amounted to a “structural error” that is not subject to harmless error analysis. In other words, when 4

the government successfully (but improperly) seeks removal of an attorney, or a trial court improperly denies a defendant the right to his counsel of choice, the conviction is automatically reversed. Because compliance with a subpoena such as the subpoena in this case will result in converting counsel into a witness for the prosecution, the end result is the same as the result in Gonzalez-Lopez: Green will be deprived of his counsel of choice. Moreover, the recent decision in the Second Circuit, United States v. Stein, 541 F.3d 130 (2d Cir. 2008), further explores the extent to which the courts have become intolerant of prosecutors’ efforts to interfere in the relationship between people accused of crimes and their chosen counsel. In Stein, the Second Circuit ultimately held that dismissal of all charges was the only remedy where the Department of Justice attempted to interfere in the relationship between the defendant and his counsel of choice. Numerous courts have adopted a rule that requires the government to establish a need to interfere with the attorney-client relationship before a subpoena to an attorney will be enforced. Though this arises in a variety of contexts, a recent Ninth Circuit case explains the concept: In United States v. Bergeson, 425 F.3d 1221 (9th Cir. 2005), the government was aware that a defendant jumped bail. His attorney, Ms. Bergeson, was subpoenaed to testify at the grand jury about whether she had told her attorney about the trial date. The trial court held that the information was not privileged, but the subpoena would be quashed as unreasonable and oppressive, because compliance with the subpoena would destroy the attorney-client relationship. The government had other evidence of the defendant’s knowledge of the trial date (from the defendant’s mother and 5

an earlier pleading filed by counsel indicating that the defendant agreed to a continuance).

The Ninth Circuit affirmed, holding that the trial court did not abuse its

discretionary authority under Rule 17(c)(2). The Bergeson decision, in an oddly parallel way, provides an accurate compass for this court in deciding whether the subpoena should be enforced in this case. See also In re Grand Jury Subpoena (DeGeurin), 913 F.2d 1118 (5th Cir. 1990); In re Grand Jury Subpoena (DeGuerin), 752 F.Supp. 239 (S.D.Tex. 1991) (After remand from the Fifth Circuit, the District Court again allowed the attorney to claim the privilege and refuse to disclose the identity of the fee-payor because the fee-payor was the attorney’s client and the fee arrangements were part of their confidential communications. Back in the Fifth Circuit, the appellate court affirmed at 926 F.2d 1423 (5th Cir. 1991), because the fee payor was also a client, his identity did not have to be divulged). The Ninth Circuit rule – in essence a supervisory power limitation on the right of the government to use the court’s authority (a subpoena) to pry information from defense counsel – reflects a growing concern throughout the country that the court’s subpoena power should not be unilaterally employed by the Department of Justice to interfere with the attorney client privilege. See, e.g., United States v. Klubock, 832 F.2d 664 (1st Cir. 1987); Whitehouse v. United States District Court for District of Rhode Island, 53 F.3d 1349 (1st Cir. 1995). Additionally, the type of fee information and retainer agreement sought by the government in this case may include information that is covered by the attorney-client privilege. For example (and this is explained hypothetically, to avoid any waiver of the 6

privilege), if the retainer agreement reveals the scope of the representation, the timing of the representation (which would be relevant as evidence in this case because of the defendant’s alleged fugitivity, as alleged by the government in its Motion to Compel), the work to be performed, the identity of investigators, or the work to be performed by investigators, all of this information is more than naked, un-protected, fee information. Such information is surely covered by the attorney-client privilege, even under the most stingy interpretation of the privilege. In re Grand Jury Subpoenas, 123 F.3d 695 (1st Cir. 1997); In re Grand Jury Subpoena (Horn), 976 F.2d 1314 (9th Cir. 1992). In any given case, the information sought by the government may be deemed privileged if the court concludes that compliance with the subpoena will provide specific information that is more than simple fee information. In certain situations (again speaking hypothetically, to avoid any waiver), the information may contain information that links the defendant to additional offenses that cannot be revealed by the attorney. See, e.g., In the Matter of Grand Jury Proceeding (Cherney), 898 F.2d 565 (7th Cir. 1990); Ralls v. United States, 52 F.3d 223 (9th Cir. 1995); In re Grand Jury Proceedings 90-2 (Garland), 946 F.2d 746 (11th Cir. 1991). We acknowledge that the Fourth Circuit cases that have addressed grand jury subpoenas to attorneys generally have approved the use of this investigative procedure. In re Grand Jury Subpoena, 204 F.3d 516 (4th Cir. 2000); In re Grand Jury Matter (Special Grand Jury Narcotics [Under Seal]), 926 F.2d 348 (4th Cir. 1991). Both cases, however, involve seemingly routine use of grand jury subpoenas. In neither case did the client (through counsel) pose the type of unique concerns that exist in this case. 7

In the earlier case (Special Grand Jury Narcotics) – a case involving the review of this district court’s decision to deny a Motion to Quash – the initial question posed to the appellate court was whether the defendant was entitled to a hearing prior to this court’s ruling on the motion. Observing that the defendant in that case presented no facts or circumstances that differentiated the case from the run-of-the-mill fee subpoena, the appellate court held that no hearing was required. In this case, the defendant is prepared to submit material to the court in camera to demonstrate the unique circumstance that requires additional protection of the information. On the merits, the Fourth Circuit adopted what was then the prevailing view regarding fee subpoenas: generally, fee information is not privileged because a retainer agreement and “a check” or a quantity of cash, is not a communication that is entitled to attorney-client privilege protection. That simple observation is beyond cavil. Here, however, the defendant is not seeking to withhold information relating simply to a fee agreement and an amount of money. Rather, the information he seeks to withhold from disclosure is not the routine information that is the subject of the typical fee information case. As the defendant will show the court in a setting where the privilege will be preserved, the information that is arguably covered by the grand jury subpoena will amount to confidential communications with the attorney. In addition, in Special Grand Jury Narcotics, the government apparently stated on the Record that it was not seeking any information outside the scope of simple payment information:

8

The government emphasizes that neither it nor the court construed the subpoena to demand anything more than fee arrangements. *

*

*

The government has agreed that the subpoena only will apply to fee arrangements; the more questionable documents that the attorneys may feel present problems are not at issue. *

*

*

In the present case, the government suggested various ways in which the disclosure could be made without requiring disqualification of the attorneys. Those methods appear reasonable and viable. As construed by the district court and the government, the subpoena only requested documents relating to fee arrangements. Id. at 350, 351. No such assurances or methods have been provided to the defendant, his counsel, or the court in this case. The 2000 case (204 F.3d 516) focuses entirely on the question of whether an attorney may be compelled to identify a client. No communication (or even the existence of a communication) was sought in that case. Though the breadth of some of the court’s statements includes issues relating to fees, those observations are simply dictum because the case presented only the question of whether the attorney could be compelled to identify who he was representing. In addition, the client in that case was the one who insisted that the reason for which he hired the attorney be disclosed to the prosecutor. Thus, the only thing that was arguably confidential was revealed to the government at the request of the client. The client could not then insist that his identity be kept secret, otherwise the government would know the scope of the attorney’s representation. In

9

short, nothing in that decision provides support for the government’s position in this case. Green did nothing, at any time, to disclose any confidential information. Finally, it is universally recognized that the government may not employ a grand jury to gather evidence for trial. The indictment in this case was returned just shy of two years ago. This case is now on track for arraignment and trial in the next few months. This is not the time for the government to seek additional information to fortify its position at trial. Obtaining information about when counsel was hired; who hired him; what retainer agreement was used; how much was paid; who paid – these are matters that are presumably evidentiary matters that the government will seek to use at trial. Utilizing a grand jury subpoena to obtain this evidence prior to trial amounts to an abuse of the grand jury process. The grand jury may not be used by the government for pretrial criminal discovery. In re Grand Jury Subpoena Duces Tecum dated January 2, 1985 (Simels), 767 F.2d 26, 30 (2nd Cir.1985); United States v. Thompson, 944 F.2d 1331, 1337 (7th Cir.1991), cert. denied, 502 U.S. 1097 (1992); United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990), cert. denied, 498 U.S. 962 (1990);. In United States v. (Under Seal), 714 F.2d 347, 349 (4th Cir.1983), cert. dismissed, 464 U.S. 978 (1983), the Fourth Circuit explained the rationale for this rule: “[P]ractices which do not aid the grand jury in its quest for information bearing on the decision to indict are forbidden.” See also Matter of Grand Jury Subpoenas Issued May 3, 1994 for Nash, 858 F.Supp. 132, 134 (D.Ariz.1994). While there are alternative means to secure the information sought, defendant is aware that there is no binding obligation on the government to seek those alternative 10

measures. However, in a matter where information is sought from counsel of record, those alternative measures should be exhausted before requiring an attorney to become a witness against his own client, and necessitating disqualification. Further, assuming arguendo, that counsel was in contact with Green while he was a “fugitive,” counsel might have a Fifth Amendment privilege against responding to the subpoena, and my insist on receiving immunity, or at least act-of-production immunity, prior to complying with the subpoena. This issue should also be explored at a hearing, and the Court should require the government to advise whether counsel himself is a potential target of the Grand Jury investigation. Counsel will then be able to assess whether to assert a Fifth Amendment claim in response to the subpoena. Counsel is prepared to demonstrate to this Court in camera, when its representation of Green began, and the existence or non-existence of the records sought by the subpoena, which should demonstrate that this subpoena should be quashed in its entirety or modified. CONCLUSION For all of the reasons set forth above, a hearing should be conducted with respect to compliance by counsel with the subpoena, and an in camera presentation permitted by counsel to the Court to detail further the reasons for non-compliance. Robert M. Simels 230 Park Avenue, 10th Floor New York, New York 10169 212-369-3900 [email protected] Dated: February 17, 2009 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES Of AMERICA v. JFM-07-066 SHAWN GREEN CERTIFICATE OF SERVICE I hereby certify that on February 17, 2009, I served a true and correct copy of the foregoing response motion to the following persons and in the manner indicated below. SERVED BY ECF: AUSA Kwame J. Manley Office of the United States Attorney 36 S Charles St Fourth Fl Baltimore , MD 21201 Tel: 14102094869 Fax: 14109623124 Email: [email protected]

/s/

Robert M. Simels 230 Park Avenue, 10th Floor New York, New York 10169 212-369-3900 [email protected]