In Re Grand Jury Proceedings. Sam Rabin, Witness-Appellee v. United States of America, Movant-Appellant

896 F.2d 1267, 1990 U.S. App. LEXIS 8312
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 16, 1990
Docket88-5056
StatusPublished
Cited by17 cases

This text of 896 F.2d 1267 (In Re Grand Jury Proceedings. Sam Rabin, Witness-Appellee v. United States of America, Movant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Grand Jury Proceedings. Sam Rabin, Witness-Appellee v. United States of America, Movant-Appellant, 896 F.2d 1267, 1990 U.S. App. LEXIS 8312 (11th Cir. 1990).

Opinions

PER CURIAM:

Samuel Rabin, appellee, received a subpoena duces tecum from a grand jury investigating the activities of his former client, Armando Garcia. The subpoena ordered Rabin to appear before the grand jury and to produce certain documents relating to the amount of fees Garcia paid Rabin during the investigation and trial of pending federal criminal charges. Rabin moved the district court to quash the subpoena, and the court granted that motion. The Government now appeals. We reverse and remand.

I.

This appeal arises out of the highly visible prosecution of seven Miami police officers known as the “River Cops.” An intensive investigation by the Dade County [1269]*1269State Attorney’s Office culminated in the filing of an information in the Dade County Circuit Court on December 27, 1985. The information contained various RICO, drug-trafficking, and larceny charges against six of the officers. One of those officers, Armando Garcia, was Rabin’s client. Apparently, during the investigation, Garcia had contacted Rabin for the purpose of hiring Rabin to provide a defense against the forthcoming charges. In March 1986, another defendant was added.

In May 1986, the State Attorney’s Office turned the investigation over to the United States Attorney’s Office for the Southern District of Florida. On June 12, 1986, a federal grand jury returned an indictment against the seven officers, charging them with RICO, drug-trafficking, and civil rights violations. Simultaneously, the State Attorney’s Office, citing the federal government’s involvement in the case, made public a nolle prosse report. The grand jury continued its investigation into the activities of the seven officers by issuing subpoenas for additional financial records, and on September 4, 1986, it returned a superseding indictment against the officers that also contained tax evasion charges against three of the officers. Garcia was one of the four officers not indicted at that time for tax evasion.

The tax evasion charges were severed from the original charges, and the case went to trial on the RICO, drug-trafficking, and civil rights charges on September 29, 1986. The trial lasted fifteen weeks and resulted in a mistrial when the jury failed to reach a unanimous verdict. In February and March 1987, all of the officers’ attorneys, including Rabin, filed motions to withdraw as counsel, and those motions were granted. The court appointed new attorneys for those officers who requested counsel and appointed standby attorneys for those officers who did not request counsel.

The Government elected to retry the case on the pending charges, and the grand jury continued its investigation into the officers’ activities. As part of its continuing investigation into possible tax evasion and failure to file income tax returns, the grand jury issued subpoenas duces tecum to the four former attorneys of those officers who had not been charged with tax evasion in the 1986 superseding indictment. Thus, Rabin was among those attorneys subpoenaed. The subpoenas commanded the attorneys to appear before the grand jury and to produce

[a]ny and all records pertaining to fees paid by or for [the officer-defendant] during the period of January 1, 1985 to the present including but not limited to:
1. Receipts.
2. Copy of remittance checks.
3. Accounts receivable ledgers/journals.
4. IRS forms 8300.
5. Deposit tickets.
6. Invoices.
7. Correspondence relating to fee.

The four attorneys jointly moved to quash the subpoena, arguing that enforcement of the subpoena would intrude on the attorney-client privilege, violate the officers’ sixth amendment right to counsel, and constitute an abuse of the grand jury. The four officers moved to intervene, but only two were allowed to do so: Garcia’s motion to intervene was denied. The district court received written briefs and heard oral argument on the motion to quash the subpoenas and, in a memorandum opinion, granted the motion. See In re Williams, 717 F.Supp. 1502, 1510 (S.D.Fla.1987). The court based its decision on the last link doctrine of the attorney-client privilege, holding that, under In re Grand Jury Proceedings (Jones), 517 F.2d 666, 670 (5th Cir.1975)1 and its progeny, the requested information might constitute “the [last] link in the Government’s proof of the [officers’] unexplained wealth.” 717 F.Supp. at 1510. The court reserved decision on the other arguments advanced in support of quashing the subpoenas. Id. at 1503. The [1270]*1270Government appeals the court’s order with regard to the subpoena issued to Rabin.

We think that the district court misapplied the last link doctrine to the information in Rabin’s possession and that the attorney-client privilege does not shield the requested information from discovery by the grand jury. Because we hold that the attorney-client privilege cannot support Rabin’s motion to quash the subpoena, we must address the other arguments advanced in support of that motion. Accordingly, we hold that Rabin’s sixth amendment claim is not yet ripe for judicial determination and that Rabin lacks article III standing to raise that claim. Furthermore, we hold that enforcement of the subpoena does not constitute an abuse of the grand jury. We therefore reverse the district court’s order quashing the subpoena and remand the case for further proceedings.

In part II, we address the district court’s holding that the requested information is protected by the attorney-client privilege. In part III, we discuss why article III and prudential concerns prevent the litigation and determination of Rabin’s sixth amendment claim. Finally, in part IV, we explain why enforcement of this subpoena does not constitute an abuse of the grand jury.

II.

A.

When determining the reach of the attorney-client privilege, we look to “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed.R.Evid. 501. From those principles, we learn that the attorney-client privilege — the oldest of the confidential communication privileges — exists “[i]n order to promote freedom of consultation of legal advisers by clients.” 8 J. Wigmore, Evidence § 2291, at 545 (McNaughten rev. ed. 1961); see United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987). Sound legal advice and advocacy depend upon full and frank communication between attorney and client. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). The attorney-client privilege, however, is inconsistent with the goal of discovering the truth at trial and, therefore, “ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” United States v. Pipkins, 528 F.2d 559, 563 (5th Cir.1976) (quoting In re Horowitz, 482 F.2d 72, 81 (2d Cir.) (quoting in turn 8 J. Wigmore, supra § 2291, at 554), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973)),

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Bluebook (online)
896 F.2d 1267, 1990 U.S. App. LEXIS 8312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-proceedings-sam-rabin-witness-appellee-v-united-states-ca11-1990.