United States v. Walker

243 F. App'x 621
CourtCourt of Appeals for the Second Circuit
DecidedJune 18, 2007
DocketNo. 05-5935-cr
StatusPublished
Cited by5 cases

This text of 243 F. App'x 621 (United States v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Walker, 243 F. App'x 621 (2d Cir. 2007).

Opinion

SUMMARY ORDER

Alan S. Walker appeals from an October 31, 2005 judgment entered in the United States District Court for the Southern District of New York (McMahon, J.), convicting Walker of 60 counts of mail fraud and one count of conspiracy to commit mail fraud. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

In a nutshell, Walker’s convictions arise from the operations of his company Program Corporation of America (“PCA”), which charged commissions for booking speaking engagements. As PCA’s finances deteriorated in 2001, Walker began (1) to pocket speakers’ fees, responding to their demands for payment with evasion, misrepresentation, or outright refusal; and (2) to pocket deposit payments from venues without arranging for the appearances.

Walker’s brief argues that his convictions should be overturned because (1) the district court refused to disqualify prosecuting attorneys who had seen four privileged documents seized from Walker’s home in a search conducted pursuant to a warrant, and screened by an insulated team of prosecutors; and (2) the district court removed a particular juror—one favored by Walker—before the trial began after asking him “leading” questions about his ability to concentrate on his duties as a juror. Although he is represented by counsel on appeal, Walker was permitted to file a pro se “supplemental appeal,” which is a lengthy catalog of factual allegations that, in our view, raises no cognizable objection other than the supposed bias of the district court judge. This Court, like a trial court, is not obligated to allow Walker to follow a course of hybrid pro se representation under which he files both a counseled and pro se brief. See United States v. Edwards, 101 F.3d 17, 19 (2d Cir.1996); United States v. Stevens, 83 F.3d 60, 67 (2d Cir.1996). Nevertheless, we will address his allegations of bias.

Disqualification of Prosecutors

Walker complained to the district court that 170 of the documents obtained in the [623]*623search and passed on to the trial team were privileged. Of the 170 documents— none of which the government used at trial—the district court concluded that one document was privileged and that three others were protected by the work-product doctrine. Because the prosecutors had engaged in no affirmative misconduct, and because they had gained no insight into Walker’s defense through their limited exposure to the handful of privileged documents, the district court declined to grant Walker the extreme relief of disqualification.

A district court’s refusal to disqualify an attorney is reviewed for abuse of discretion, see United States v. Jones, 881 F.3d 114, 119 (2d Cir.2004) (citing United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993)); the same standard applies where the attorney is a prosecutor, see United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986). At least one district court has disqualified prosecutors who engaged in “serious misconduct” by reviewing and copying—against the district court’s explicit instructions—attorney work product that “provided an important insight into defense tactics, strategy, and problems.” United States v. Horn, 811 F.Supp. 739, 750-51 (D.N.H.1992), rev’d in part on other grounds, 29 F.3d 754 (1st Cir.1994). Unlike the defendant in Horn, however, Walker has suffered no prejudice; the documents at issue could not possibly have provided insight into defense strategy or into the relationship between Walker and his attorney. Exhibits one through three are handwritten lists of dates, financial entries, and contract statistics concerning PCA; according to Walker, they were prepared for Walker’s defense. The fourth document is a letter from Walker to his attorney tersely asking for advice about how to respond to a communication from a creditor and attaching non-privileged documents. Neither the letter nor the handwritten lists should have been reviewed by the trial prosecutors; but they did not do the screening, and (more importantly) any theory of prejudice to Walker’s defense is far too attenuated to indicate that the district court abused its discretion by refusing to disqualify.

The same is true as to the remainder of the 170 documents, which were composed chiefly of various form printouts summarizing PCA’s contracts. Even assuming the documents (or the handful of corrections and clarifications handwritten thereon) were work product or were privileged, they contain solely factual information about PCA’s business, and shed no light on Walker’s confidential communications with counsel or defense strategy. Moreover, we agree with the district court that these documents were neither work product nor attorney-client communications. The attorney-client privilege protects from disclosure the contents of confidential attorney-client communications, but does not prevent disclosure from the client’s records the underlying factual information included in attorney-client communications. See Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). For this reason, putting otherwise non-privileged business records (like the contract summaries here) in the hands of an attorney—or printing out such records for an attorney to review— does not render the documents privileged or work product. See Ratliff v, Davis Polk & Wardwell, 354 F.3d 165,170-71 (2d Cir.2003) (“Documents obtain no special protection because they are housed in a law firm; ‘[a]ny other rule would permit a person to prevent disclosure of any of his papers by the simple expedient of keeping them in the possession of his attorney.’ ”) (quoting Colton v. United States, 306 F.2d 633, 639 (2d Cir.1962)); In re Grand Jury Subpoenas, 318 F.3d 379, 384 (2d Cir.2003) (stating that the work product doctrine [624]*624generally does not “shield[] from discovery materials in an attorney’s possession that were prepared neither by the attorney nor his agents”). Moreover, the “selection and compilation of ... documents by counsel transforms that material into attorney work product” only if there is “a real, rather than speculative, concern that counsel’s thought processes in relation to pending or anticipated litigation will be exposed through disclosure of the compiled documents.” In re Grand Jury Subpoenas, 318 F.3d at 386 (internal quotation marks omitted). Walker has failed to raise such a real concern here.

The district court acted within its discretion when it refused to disqualify the prosecutors who inadvertently reviewed the documents. Because we see no indication in the record that the prosecutors committed egregious misconduct, we express no opinion on whether such misconduct would call for disqualification without substantial prejudice to the defense.

Juror Discharge

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Bluebook (online)
243 F. App'x 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-walker-ca2-2007.