Ninth Circuit Rules:
Subpoena for Lawyer to Testify Against Client Properly Quashed
By DAVID WATSON, Staff Writer
A grand jury subpoena issued to compel an assistant federal public defender to testify against her own client did not implicate the attorney-client privilege but was properly quashed as “unreasonable and oppressive,” the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Federal prosecutors in Oregon sought the testimony of Assistant Federal Public Defender Nancy Bergeson in their effort to obtain an indictment of her client, Michael Casey, for jumping bail. They hoped Bergeson would testify that she made Casey aware of the date scheduled for his trial on drug charges.
Casey did not appear, and prosecutors sought to indict him under 18 U.S.C. Sec. 3146. The section makes it a crime if a defendant “knowingly” fails to appear in court as required after being release on bond, and Bergeson’s testimony could have shown Casey knew about the trial date.
Writing for the appellate panel, Judge Andrew J. Kleinfeld noted that U.S. District Judge Ancer L. Haggerty of the District of Oregon found that Bergeson could testify about whether she informed Casey of the trial date without violating attorney-client privilege. Bergeson, Kleinfeld said, conceded that any statement she made to Casey advising him of the trial date was not privileged.
‘Unreasonable or Oppressive’
But Haggerty quashed the subpoena under Rule 17(c)(2) of the Federal Rules of Criminal Procedure, which authorizes that action “if compliance would be unreasonable or oppressive.” The district judge found that other evidence was available by means of which prosecutors could establish a probability sufficient to support an indictment that Casey knew when he was supposed to appear for trial.
Haggerty also credited Bergeson’s testimony that her relationship with Casey would be destroyed if she testified against him.
Kleinfeld said Haggerty acted within the proper bounds of his discretion.
The appellate jurist cautioned that the court was not ruling that compelling a criminal lawyer to testify against a client before a grand jury could never be proper.
“We do not suggest that a subpoena of a lawyer to testify against her client before a grand jury would always be unreasonable or oppressive,” Kleinfeld wrote. “The circumstances, such as the risk of imminent physical harm to others, magnitude of the case, scarcity of evidence — all sorts of things that bear on reasonableness — can legitimately be weighed along with the potential harm from enforcing the subpoena. But in this case, the district court’s exercise of its discretion to quash the subpoena was eminently reasonable.”
He noted that an affidavit filed by Bergeson in the drug case stated she had consulted with Casey about the proposed trial date and that he agreed to it, though it did not specifically say she had informed him that the court had set trial for that date. Prosecutors also had a memorandum written by a pretrial services worker in Portland saying that he had spoken with Casey’s mother, who said Casey told her about the trial date, though the mother also made subsequent contradictory statements.
“In determining whether a subpoena of the lawyer is ‘unreasonable or oppressive,’ the district court may properly consider, among other factors, whether compliance would likely destroy the attorney-client relationship, and whether the information sought from the lawyer is already available from other sources,” Kleinfeld declared.
He rejected the prosecutors’ argument that Haggerty erroneously required a “compelling purpose” for the subpoena. While a compelling purpose may not be required to support a subpoena, Kleinfeld reasoned, its presence or absence may be considered among other factors in making a ruling under Rule 17(c)(2).
“Because the judge gave several reasons for granting the motion to quash, his decision is best read as a discretionary one that did not posit ‘compelling purpose’ as a sine qua non,” Kleinfeld said.
He noted that the First and Fifth Circuits have previously ruled that there is no “mechanical rule” for deciding when an subpoena is unreasonable or oppressive.
“The government is not automatically entitled to subpoena a lawyer to testify against his client merely because the Constitution does not prohibit it and the material is not privileged,” he explained. “The defendant is not automatically entitled to an order quashing such a subpoena merely because the government cannot show that no other source of testimony exists and that there is a compelling need for it to obtain an indictment.”
“In concluding that...Rule 17(c)(2) requires a case-by-case inquiry, we join the First Circuit and the Fifth Circuit.”
Damage to Relationship
The facts that Bergeson was an appointed lawyer, so that Casey did not have a lawyer of his own choosing, and that she could have been replaced by another member of the federal public defender’s staff, did not — as prosecutors contended — undermine her argument that irreparable damage to the attorney-client relationship would result if the subpoena were upheld, Kleinfeld said.
“This argument has no force,” the appellate judge wrote. “Though an indigent is not entitled to counsel of his choice, the government is not entitled to force an indigent’s assigned lawyer out of the case.”
“That Ms. Bergeson’s testimony might have been the simplest, clearest way to prove that she had told Casey his trial date does not make it necessary. All a federal grand jury needs to indict is ‘probable cause,’ and it can indict based on hearsay.”
Senior Judges Warren J. Ferguson and Stephen S. Trott concurred.
The case is United States v. Bergeson, 04-35312.
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