Monday, April 22, 2002
Threat to Kill Lawyer Not Covered by Attorney-Client Privilege—Court
By a MetNews Staff Writer
Conversations between a defendant, his lawyer, and the defense investigator, in which the client threatened to kill the attorney and the investigator—as well as the prosecutor, an FBI agent, and three other people— weren’t privileged communications, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court affirmed James Alexander’s conviction and 63-month sentence on five counts of communicating threats by telephone or in interstate commerce. Alexander is a disbarred Montana lawyer.
The threatened attorney, Mark Werner of the Federal Defenders of Montana, was appointed to represent Alexander in 1997 on charges of mail and wire fraud. The indictment came five years after the FBI and the State Bar began investigating allegations that Alexander had misrepresented facts in order to induce clients to hire him in connection with potential adoptions in the Republic of Macedonia.
The State Bar investigation led to Alexander losing his right to practice. Among those he was convicted of threatening were the three members of the disciplinary committee that recommended his disbarment.
About a year after the fraud indictment was handed down, defense investigator Russ Curry notified Werner of a conversation in which Alexander said he had “only one wish, and that wish is to kill...but also to watch people being tortured before he kills them.” That same day, Werner notified a pretrial services officer for the U.S. Probation Office that his client “has stated threats against various individuals” in which he had “expressed his intent to inflict harm and death.”
The following week, Werner moved to withdraw from the case. He was also subpoenaed to testify before a grand jury.
After asserting the attorney-client privilege, Werner was ordered to testify and to comply with a subpoena duces tecum, but was directed not to testify as to any communication unrelated to the threats and to redact all information from the subpoenaed documents that related to the defense and did not relate to the alleged threats.
The fraud charges were subsequently dismissed. Werner and Curry testified against Alexander at trial, at which he was convicted on five counts of making threats and acquitted of three.
Werner’s disclosures didn’t violate the attorney-client privilege, Senior Judge Arthur Alarcon wrote for the Ninth Circuit. “Alexander’s threats to commit violent acts against Werner and others were clearly not communications in order to obtain legal advice,” the jurist wrote.
If he had been asking for legal advice regarding commission of future crimes, the judge added, the crime-fraud exception to the privilege would have clearly applied.
Alarcon also rejected several challenges to the calculation of Alexander’s sentence, including claims that the fraud indictment was improperly taken into consideration and that members of the discipline committee were erroneously classified as “official” victims for enhancement purposes.
District Judge Jack Shanstrom—who has since taken senior status—did not use the fraud allegations for enhancement purposes, Alarcon said, but merely to justify a sentence at the top of the guideline range. His decision to do so is not reviewable on appeal, Alarcon explained.
The appellate jurist rejected the contention that the official-victim enhancement imposed by the guidelines applies only to federal officials.
The guidelines, the judge noted, apply the enhancement to any crime committed against a “government officer or employee” in the course of, or in relation to, official duties. The plain meaning, Alarcon declared, is that crimes against state or local officials, as well as those of the federal government, are covered.
That position is consistent with rulings in the Eighth Circuit, which upheld the enhancement where the victim was a state prison official, and in the Sixth Circuit, where the victim was a county prosecutor, Alarcon noted.
Judge Barry G. Silverman and U.S. District Judge James A. Teilborg of Arizona, sitting by designation, concurred in the decision.
The case is United States v. Alexander, 00-30348.
Copyright 2002, Metropolitan News Company