EFTA00032862

U.S. v. Neill, 952 F.Supp. 834 (1997) 4ii Interference in Attorney-Client Relationship Tal KeyCite Yellow Flag - Negative Treatment For purposes of constitutional violation arising Declined to Follow by U.S. v. Taylor, DIvIc., February 9, 2011 out of government's intrusion upon 952 F.Supp• 834 attorney-client privilege, it matters little whether United States District Court, intrusion occurred prior to initiation of formal District of Columbia. adversary proceedings, inasmuch as right to fair trial may be crippled by government UNITED STATES of America interference with attorney-client privilege long v. before formal commencement of criminal Denis M. NEILL, James P. Neill, Defendants. proceeding. U.S.C.A. Const.Amend. 6. Crim. Action No. 95-0323 (JHG). I Cases that cite this headnote Jan. 17, 1997. Synopsis 131 Criminal Law Defendants charged with tax offenses moved to dismiss 4.-Interference in Attorney-Client Relationship due to government's invasion of their attorney-client privilege. Government opposed motion. The District Not every government intrusion on Court, Joyce Hens Green, J., held that: (1) government's attorney-client privilege is constitutional affirmative decision to invoke "taint team" procedures violation. U.S.C.A. Const.Amend. 6. with regard to handling potentially privileged documents was per se intentional intrusion upon defendants' attorney-client privilege, but (2) government successfully 3 Cases that cite this headnote rebutted presumption of harm arising from its decision to use "taint team" procedures. Motion to dismiss denied; motion to supplement record denied. 19 Criminal Law taConsultation with Counsel; Privacy When government agents acquire information subject to attorney-client privilege, but do not West Headnotes (14) communicate that information to prosecutors, there is no violation of accused's rights to fair trial and effective assistance of counsel. Ill Criminal Law U.S.C.A. Const.Amend. 6. 0-Interference in Attorney-Client Relationship Substantial questions of fundamental fairness Cases that cite this headnote are raised when, in connection with criminal prosecution, government invades accused's attorney-client privilege. U.S.C.A. Const.Amend. 6. Criminal Law iii Interference in Attorney-Client Relationship 1 Cases that cite this headnote Although there is presumption that information subject to attorney-client privilege obtained by government agents is conveyed to prosecution team, government may rebut that presumption 121 Criminal Law WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00032862 U.S. v. Neill, 952 F.Supp. 834 (1997) by showing existence of suitable safeguards or rebut presumption that tainted material was by demonstrating that there will be no prejudice provided to prosecution team. U.S.C.A. to defendants as result of these communications. Const.Amend. 6. U.S.C.A. Const.Amend. 6. 1 I Cases that cite this headnote 2 Cases that cite this headnote Criminal Law 161 Criminal Law ...Interference in Attorney-Client Relationship -Sanctions for Breach of Prosecutorial Duties Government successfully rebutted presumption There must be substantial demonstration of of harm arising from its decision to use "taint prejudice before indictment can be dismissed team" procedures in handling information based on government's intrusion upon accused's potentially subject to attorney-client privilege, attorney-client privilege. U.S.C.A. rather than submitting disputed materials for in Const.Amend. 6. camera review by court, in that government took precautions to shield prosecution team from viewing potentially privileged materials during Cases that cite this headnote execution of search warrant, prosecution team witnesses testified that they received no privileged information from agents exposed to potentially privileged materials, taint team took sufficient precautions to ensure that prosecution DTI Criminal Law did not have access to potentially privileged 6 -Interference in Attorney-Client Relationship documents or become aware of those materials' contents, prosecution team member sealed, Government's affirmative decision to invoke without reading, and delivered to taint team "taint team" procedures with regard to handling potentially privileged materials he accidentally documents potentially subject to attorney-client discovered, and no evidence indicated that privilege, rather than follow more traditional government acquired defendants' trial theories approach of submitting contested materials for or strategies. U.S.C.A. Const.Amend. 6. in camera review by magistrate, was per se intentional intrusion upon privilege. U.S.C.A. Const.Amend. 6. 12 Cases that cite this headnote 5 Cases that cite this headnote 1101 Criminal Law tio lnterference in Attorney-Client Relationship 111 Criminal Law Although factual disclosures obtained through +"Effect of Representation or Deprivation of invasion of attorney-client privilege that enable Rights government to better investigate its case could rise to level of Sixth Amendment violation if When government chooses to take matters into substantial, disclosure of facts is presumptively its own hands with regard to handling of less harmful than disclosure of trial strategy. information potentially subject to attorney-client U.S.C.A. Const.Amend. 6. privilege, rather than using more traditional alternatives of submitting disputed documents under seal for in camera review by neutral and 1 Cases that cite this headnote detached magistrate or by court-appointed special masters, government bears burden to WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00032863 U.S. v. Neill, 952 F.Supp. 834 (1997) Ildj Criminal Law -SAmendment and Correction 1111 Criminal Law 4•Particular Cases in General Order granting government's request to Criminal Law supplement the record, with regard to 4-'Miscellaneous Particular Issues defendants' motion to dismiss on ground that government intruded upon attorney-client Disclosure to prosecution team of identity of privilege, did not provide equitable basis for person associated with defendant, as result of granting defendants' motion to supplement the team member's inadvertent discovery of record, inasmuch as defendants did not object to document protected by attorney-client privilege, government's request and document admitted did not violate defendant's rights to fair trial and pursuant to order had already been provided to effective assistance of counsel. U.S.C.A. court with other documents submitted for in Const.Amend. 6. camera review, based on defendants' request, and therefore order merely ensured that document was available to defendants. 2 Cases that cite this headnote Cases that cite this headnote 1131 Criminal Law -SSanctions for Breach of Prosecutorial Duties Defendants were not entitled to dismissal on Attorneys and Law Firms ground that government improperly intruded upon attorney-client privilege by examining *836 John Martin Bray and Joseph Martin Jones, seized computer files when defendants failed to Schwalb, Donnenfeld, Bray & Silbert, P.C., Washington, assert privilege with respect to those materials. DC, for Denis M. Neill. U.S.C.A. Const.Amend. 6. Charles Taylor Smith, II, Ober, Kaler, Grimes & Shriver, Baltimore, MD, Martha Purcell Rogers and Hartman E. Cases that cite this headnote Blanchard, Ober, Kaler, Grimes & Shriver, Washington, DC, for James P. Neill. Richard A. Poole, U.S. Department of Justice, Criminal Division, Fraud Section and John E. Sullivan, U.S. 1111 Privileged Communications and Department of Justice, Criminal Section, Tax Division, Confidentiality Washington, DC, for the U.S. ...Objections; Claim of Privilege Privileged Communications and Opinion Confidentiality -SPresumptions and Burden of Proof MEMORANDUM OPINIONAND ORDER Proponent of attorney-client privilege bears burden to establish its existence, and, absent timely assertion of privilege for each specific JOYCE HENS GREEN, District Judge. communication or document, no privilege will be recognized. Pending before the Court is the defendants' Motion to Dismiss due to the Government's Invasion of Their Attorney—Client Privilege ("Motion to Dismiss"). After I Cases that cite this headnote determining that the defendants had made the requisite preliminary showing under United States v. Kelly 790 F.2d 130, 137 (D.C.Cir.1986), the Court ordered an evidentiary hearing on this issue. See United States v. WEST LAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00032864 U.S. v. Neill, 952 F.Supp. 834 (1997) Neill, Memorandum Op. at 21 & 24 (JHG) (D.D.C. Oct. selected the latter. The PLA then reviewed each document 10, 1996). Upon consideration of the evidence introduced for which counsel claimed privilege, seizing some and and testimony offered at the evidentiary hearing, in light returning others to counsel. At the offices of Neill & of the credibility and demeanor of the witnesses, as well Company, without reviewing the potentially privileged as the in camera submissions offered by both parties,' materials in James Neill's seized briefcase, the PLA their post-hearing briefs and the entire record in this sealed those materials. At no time did the defendants' matter, the Motion to Dismiss will be denied. counsel seek judicial intervention or file a motion for a protective order. Nor did counsel ever file a motion under Fed.R.Crim.P. 41(e). Because materials asserted to be subject to the L Findings of Fact attorney-client privilege had been seized, on October 28th, Deputy Chief of the Fraud Section Peter Clark On October 27, 1993, federal agents executed four search directed trial attorney Elisabethanne Stevens and her warrants at the office of Neill and Company, and the supervisor, Barbara Corprew, to review those materials. homes of Defendants James and Denis Neill. On October Stevens and Corprew formed what the Department of 28th, a fifth warrant was executed to search Defendant Justice called a "taint team," meaning that their actions James Neill's safe deposit box at Columbia First Bank in would be "walled off" from the prosecution team thereby Washington, D.C. See Mem.Op. at 1-5. Approximately ensuring that the prosecution team remained free of the sixty boxes of materials were seized, including "taint" arising from exposure to potentially privileged computers, computer files and data. Id. at 6. The seized material. Stevens and Corprew's mandate was to review items were stored in a locked space at the IRS Office, 500 documents for which the defendants claimed N. Capitol St., N.E., Washington, D.C. attorney-client privilege, determine whether the crime-fraud exception might be applicable, and, if While the affidavits to the search warrants and the search necessary, litigate the existence of the privilege or the execution memorandum stated that the federal agents application of the crime-fraud exception! On October were not to seize documents on the letterhead of the 29th, before he met with the defendants' counsel, defendants' attorneys, these "letterhead documents" were prosecutor Richard Poole (Senior Trial Attorney, Fraud in fact seized over the oral and written objections of the Section) was advised that Ms. Stevens would act in this defendants.= The agents also seized other documents that capacity. were not "letterhead documents" but some of which were later claimed to be protected by attorney-client privilege. On November I, 1993, the defendants' counsel met with Poole to voice their objections to the seizure of materials In that the search warrants authorized the search of a law for which they claimed privilege and to demand the return office as well as the home of *837 Denis Neill, a lawyer, of the same.' While the defendants' counsel contend that the government provided measures to minimize the the government promised to return without review any potential intrusion upon the attorney-client privilege. FBI documents seized contrary to the search affidavits and agent attorneys were directed to serve as Principal Legal Search Execution Memorandum, Poole recalled telling Advisers ("PLA's") on site to review all potentially counsel that such documents would be returned, but only privileged documents prior to seizure. See Mem.Op. at 6 after review by someone other than a "prosecution team" (quoting Search Execution Memorandum of Oct. 19, member: "We discussed the fact that the fraud section had 1993). The Search Execution Memorandum provided that identified a review team who would be looking at the "search team members, with the advice of PLA's as issues raised by the claims of privilege and appropriate, should segregate and place in sealed would—would be responsible for resolving them, envelopes or separate boxes, items that may be subject to including litigation." Hearing Transcript ("Transcript") at the attorney-client privilege. This includes any items 74 (Vol. I —B).6 which occupants of the search locations claim are privileged." Id. (quoting Search Execution Mem. at 2). In a follow-up letter, the defendants' counsel requested the return of thirteen items, none of which they claimed The seizure of potentially privileged documents was were privileged but which were of a personal nature to the handled differently at different search sites. At Denis defendants or their family. See Joseph •838 Jones' letter Neill's home, after offering Denis Neill's counsel the of Nov. 4, 1993, at 1-2, Defendants' Exhibit ("DE") # 5. option of sealing the materials for off-site review or of The letter also stated: having the PLA conduct an immediate on-site review in With regard to the privileged items, counsel's presence, counsel (over standing objection) we propose to designate someone WEST LAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00032865 U.S. v. Neill, 952 F.Supp. 834 (1997) from our office to immediately what he may have gleaned of its content or even the fact review these items with Attorney of its existence. See Transcript at 86 (Vol. I—B). The Elisabeth (sic) Stevens of your document was later returned to the defendants by Stevens. office in order to segregate those items which were clearly seized in Another set of potentially privileged materials was contravention of your instructions discovered by Fort on or about January 24, 1994. Fort to seize no correspondence, testified that while again reviewing documents that had memoranda, etc., emanating from already been inspected and inventoried by defense our offices or those of James counsel, he opened a manila envelope for Federal City Neill's counsel, Martha P. Rogers, National Bank which included documents that were Esq. There may be other materials labeled as "attorney/client privileged." See Transcript at which are privileged 87 (Vol. I—B). Fort testified that he did not •839 show the communications between Denis or documents to anyone or read them. See id. at 87-88 & James Neill as clients, and others 101. Instead, he immediately sealed them and then gave (sic) attorneys." Id. at 2.' the sealed materials to Brown, who delivered them to Stevens. See Transcript at 101 (Vol. I—B); Transcript at On November 2nd, Stevens received two boxes which 84-86 (Vol. II-B). included materials that the defendants claimed were protected by the attorney-client privilege. While Eventually, all of the documents for which the defendants Defendant Denis Neill's counsel did not designate anyone asserted attorney-client privilege were returned to their pursuant to his letter of November 4th until approximately counsel. It is undisputed that Stevens and Corprew read one month later, Stevens was contacted directly by those materials. However, neither the evidence at the Defendant James Neill's counsel, Martha Rogers, on hearing nor the in camera submission of over two boxes November 3, 1993. Rogers demanded the return of the of electronic mail messages and other documents indicate materials in James Neill's briefcase. She testified that she that any privileged information flowed from the taint team was advised by Stevens that such materials would be to the prosecution team. Instead, the record and in camera returned without review as soon as they were located. materials reflect that Stevens and Corprew clearly However, Stevens testified that on or about November appreciated the need for isolating their review from the 8th, she advised Rogers that she would be reviewing those prosecution and took steps on numerous occasions to documents before she could make a determination ensure that the substantive information in potentially whether they should be returned. Still, the defendants privileged documents was protected. Only those materials made no request for judicial intervention. for which attorney-client privilege was not asserted were released to the prosecution team, and the record During the course of the next several months, Stevens and demonstrates that this was done only after the defendants Corprew reviewed the initial delivery of potentially were provided notice and an opportunity to claim privileged materials as well as other potentially privileged privilege. documents later discovered among the seized items. In two instances, IRS Special Agent Fort, a member of the In the course of their assignment, Stevens and Corprew prosecution team, discovered documents that were did not review the potentially privileged data that was marked "attorney-client" privilege among the seized stored electronically. Unlike the letterhead documents and items' Fort testified that, on or about December I, 1993, other materials that were seized, however, there is no after one of the defendants' counsel had reviewed the evidence demonstrating that the defendants ever asserted seized materials and made an inventory, see Transcript at a claim of attorney-client privilege with respect to the 83 & 104 (Vol. I -B), he began reviewing the materials. computer material. See, e.g., Transcript at 107-08 (Vol. While going through a three-ring binder, he happened II-B). Nevertheless, in May and June of 1996, the upon a tab that was labeled "Earl Glock—Attomey/Client." government established a computer "taint team." It After opening the notebook to the tab, he discovered what assigned Agent Ray Smith to download the files and appeared to him to be a legal opinion. He then removed Agent Harvey Barlow to review them for materials that that section, without reading the potentially privileged were potentially privileged. See Government's material, sealed the document and delivered it to Stevens. Supplemental Submission Regarding Issues Arising from See Transcript at 80-86 (Vol. I -B). Agent Brown, who the Search Warrants, at App. 2. Potentially privileged was present when Fort discovered and sealed the materials were deleted from the files prior to providing document:, corroborated Fort's testimony. See Transcript the prosecution team with computer disks containing the at 84-85 (Vol. II—B). Fort testified persuasively that he seized electronic files. While it is undisputed that the neither showed the document to Poole nor did he discuss prosecution team had access to the computers and WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00032866 U.S. v. NOM, 952 F.Supp. 834 (1997) electronic files, the agents testified persuasively that they Where government agents acquire privileged information, did not access those files, and them is no evidence to the but do not communicate that information to the contrary. Significantly, two prosecution team members prosecutors, there is no Sixth Amendment violation. Id. at testified at the hearing that they lacked computer skills. 555, 97 S.Ct. at 843-44; see United States v. Kelly, 790 See Transcript at 77 (Vol. II—B); Transcript at 8 (Vol. F.2d 130, 137 (D.C.Cir.1986). While there is a II—A). presumption that the information is conveyed to the prosecution team, Briggs v. Goodwin, 698 F.2d 486, 495 (D.C.Cir.1983), vacated on other grounds, 712 F.2d 1444, cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984), the government may rebut that presumption II. Conclusions of Law by showing the existence of suitable safeguards, id. at 495 n. 29, or by demonstrating that "there will be no prejudice hl PI A criminal defendant is guaranteed the right to the to the defendants as a result of these communications." effective assistance of counsel. McMann v. Richardson, United States v. Mastroianni, 749 F.2d 900, 908 (1st 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 Cir.I984). See generally Note, Government Intrusions (1970); Coplon v. United States, 191 F.2d 749, 757 into the Defense Camp: Undermining the Right to (D.C.Cir.1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, Counsel, 97 Harv.L.Rev. 1143, 1150 (1984). 96 L.Ed. 690 (1952). The attorney-client privilege, while it has not been elevated to the level of a constitutional 161 Under Weatherford and Kelly, four factors are relevant right, see, e.g., United States v. White, 970 F.2d 328, 336 as to whether an alleged intrusion into the attorney-client (7th Cir.1992), is key to the constitutional guarantees of privilege offends the Constitution: (1) whether evidence the right to effective assistance of counsel and a fair trial. to be used at trial was obtained directly or indirectly by Coplon, 191 F.2d at 757. To provide effective assistance, the government intrusion; (2) whether the intrusion was a lawyer must be able to communicate freely without fear intentional; (3) whether the prosecution received that his or her advice and legal strategy will be seized and otherwise confidential information about trial preparation used against the client in a criminal proceeding. See or defense strategy as a result of the intrusion; and (4) United States v. Levy, 577 F.2d 200, 209 (3rd Cir.1978); whether the privileged information was used or will be United States v. Rosner, 485 F.2d 1213, 1224 (2nd used to the substantial detriment of the defendants. Cir.1973), cert. denied, 417 U.S. 950, 94 S.Ct 3080, 41 Weatherford, 429 U.S. at 558, 97 S.Ct. at 845; Kelly, 790 L.Ed.2d 672 (1974). One of the principal purposes of the F.2d at 137. While neither the Supreme Court nor this attorney-client privilege is to promote the free and open Circuit have yet explained how these factors are to be exchange between the attorney and client, see Fisher v. weighed, and the other circuits remain split, see Kelly, United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 790 F.2d at 137 & n. 5, it is clear that there must a L.Ed.2d 39 (1976), and substantial questions of substantial demonstration of prejudice before an fundamental fairness are raised where, in connection with indictment can be dismissed. See United States v. a criminal prosecution, the government invades that Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 privilege. It matters little whether the intrusion occurred L.Ed.2d 564 (1981). prior to the initiation of formal adversary proceedings, see Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, In this case, there can be no doubt that the government 32 L.Ed.2d 411 (1972), because the right to a fair trial intentionally invaded the attorney-client privilege. The could be crippled by government interference with the government all but concedes that materials subject to the attorney-client privilege long before the formal privilege were reviewed during the execution of the commencement of a criminal proceeding. search warrant and more were seized and sealed.'0 Stevens, an attorney assigned to the Department of PI I 1 151 "An independent judiciary and a sacrosanct Justice's Fraud Section, testified that she read most (but confidential relationship between lawyer and client are not all) of the potentially privileged materials to the bastions of an ordered liberty." Edna Selan Epstein, determine whether the crime-fraud exception applied. The Attorney—Client Privilege and the Work— *840 Moreover, at least one agent, PLA Rebecca Granger, read Product Doctrine 2 (3rd ed. 1997). Nonetheless, not every materials for which Defendant Denis Neill's counsel intrusion on the attorney-client privilege constitutes a asserted privilege during the search of Denis Neill's constitutional violation. Under Weatherford v. Bursey, home!, These intrusions were not accidental; they were 429 U.S. 545, 554, 97 S.Ct. 837, 843, 51 L.Ed.2d 30 deliberate and intentional." (1977), an intrusion may result in a constitutional violation if privileged information is intentionally 171 II/I While the parties dispute whether courts have obtained and used to the defendant's detriment at trial. sanctioned the Department of Justice's "taint team" WEST LAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00032867 U.S. v. Neill, 952 F.Supp. 834 (1997) procedures," it is clear that the government's affirmative ensure that the prosecution team did not have access to decision to *841 invoke these procedures constitutes a per the potentially privileged documents or become aware of se intentional intrusion. See Weatherford, 429 U.S. at 558, the content of those materials. When potentially 97 S.Ct. at 845; Kelly, 790 F.2d at 137." Where the privileged materials were later inadvertently discovered government chooses to take matters into its own hands among the sixty boxes of seized items by Agent Fort, a rather than using the more traditional alternatives of prosecution team member, he acted responsibly by sealing submitting disputed documents under seal for in camera the materials without reading them. He then had them review by a neutral and detached magistrate or by delivered to the taint team for review. court-appointed special masters, see, e.g., United States v. Zolin, 491 U.S. 554, 570-71, 109 S.Ct. 2619, 2629-30, The defendants contended at the evidentiary hearing 105 L.Ed.2d 469 (1989); In re Grand July Proceedings, (generally through bench conferences the transcripts of 867 F.2d 539, 540 (9th Cir.1989); In re Impounded Case, which have been sealed) that the government acquired 840 F.2d 196, 202 (3rd Cir.I988); In re Berkley and information that will be used to their detriment. However, Company, 629 F.2d 548, 550 (8th Cir.1980); United based on the Court's independent review of the States v. Osborn, 561 F.2d 1334, 1338-39 (9th Cir. 1977); defendants' sealed filing for in camera review (and In re Subpoena Addressed to Murphy 560 F.2d 326, 331 contrary to the defendants' assertion), there is no evidence (8th Cir.1977); Hartford Assocs. v. United States, 792 that the government acquired the defendants' trial theories F.Supp. 358, 367 (D.N.J.1992), it bears the burden to or strategy. Compare Levy, 577 F.2d at 210 ("actual rebut the presumption that tainted material was provided disclosure of defense strategy"). to the prosecution team. Briggs, 698 F.2d at 495 n. 29 ("The government is, of course, free to rebut this IrW 1"l At most, the potentially privileged materials presumption, by showing, for example, procedures in reviewed by the government contained facts identifying place to prevent such intragovemmental entities and persons. *842 CI Upjohn Co. v. United communications."). States, 449 U.S. 383, 395-96, 101 S.Ct. 677, 685-86, 66 L.Ed.2d 584 (1981) (distinguishing between protection 191 However, an intrusion into the attorney-client privilege, provided to attorney-client communications and facts standing alone, does not per se violate the Constitution. If underlying those communications). While factual the government demonstrates that no harm, that is, no disclosures enabling the government to better investigate privileged information regarding trial strategy or its case could rise to the level of a Sixth Amendment otherwise has been communicated to the prosecutors and violation if substantial, see United States v. Castor, 937 used to the defendants' detriment, there is no F.2d 293, 297 (7th Cir.1991), the disclosure of facts is constitutional violation. Weatherford, 429 U.S. at 558, 97 presumptively less harmful than the disclosure of trial S.Ct. at 845; Kelly 790 F.2d at 137. In this instance, strategy. Here the government has demonstrated to the based upon the evidence and testimony offered at the Court's satisfaction that no privileged information, factual evidentiary hearing, including the demeanor and or otherwise, flowed from the taint team to the credibility of the witnesses as well as the Court's review prosecution team. Consequently, there is no evidence of a of voluminous materials submitted under seal for in harmful disclosure resulting from the taint team's review. camera inspection and the entire record in this matter, the The only information that the prosecution team may Court is satisfied that the government has carried its possibly have acquired arose from Agent Fort's burden to rebut the presumption of harm. inadvertent discovery of Earl Clock's identity. After the defendants' counsel reviewed the materials, Fort First, the government took precautions to shield the discovered the notebook with a tab marked "Earl prosecution team from viewing potentially privileged GlockJAttorney-Client."" The inadvertent disclosure of materials during the execution of the search warrants. this fact does not constitute constitutional harm. Only Agent Fort was present during the searches and then only for a short time. Fort testified persuasively that he In sum, the Court has not seen any potentially privileged did not read the content of any potentially privileged materials that were seized and presumably" reviewed by materials, and his testimony was not undermined on the government and which can reasonably be construed as cross-examination or through other evidence. Second, the trial strategy. While some factual information was prosecution team witnesses testified that, to their reviewed by the taint team, the record in this matter, knowledge, they received no privileged information from including the in camera submissions, indicates that none the agents who may have been exposed to potentially flowed to the prosecution team. Agent Fort's discovery of privileged materials, such as Agent Granger, the PLA on the tab identifying "Earl Clock/Attorney—Client" can only site during the search of Defendant Denis Neill's home. be characterized as inadvertent. The defendants' argument Finally, the taint team took sufficient precautions to that the government derived its factual knowledge from WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00032868 U.S. v. Neill, 952 F.Supp. 834 (1997) material protected by the attorney-client privilege is based would be helpful to resolving the Motion to Dismiss. on bare speculation, and, for the reasons stated above, it is rejected. NI The defendants support their motion by arguing fairness and noting specifically that the Court granted the l i n " 31 As to the computer files, the defendants' charge government's request to supplement the record with a fails at the outset simply because they have not shown memorandum from Michael Shaheen of the Department that they asserted the attorney-client privilege with of Justice's Office of Professional Responsibility. See respect to those materials. The proponent of the privilege Order of December 9, 1996. The Shaheen memorandum bears the burden to establish its existence, United States v. simply reflects his finding that the Fraud Section engaged (Under Seal), 748 F.2d 871, 876 (4th Cir.I984); United in no misconduct), While the defendants did not object to States v. Covington & Burling, 430 F.Supp. 1117, 1122 the government's motion to file the Shaheen (D.D.C.I977), and absent the timely assertion of memorandum, the Court notes that this document was attorney-client privilege for each specific communication already available to her as part of Ms. Corprew's files, or document, no privilege will be recognized. United which were submitted for in camera review based upon States v. White, 970 F.2d 328, 334 (7th Cir. I 992). Since the defendants' request at the evidentiary hearing. By there is no evidence of such an assertion by the granting the government's unopposed motion, the Court defendants, it is unsurprising that neither Stevens nor merely ensured that the Shaheen memorandum was also Corprew were asked to review computer files. Indeed, available to the defendants. The Court's Order of Stevens testified that she was unaware of the existence of December 9th simply establishes no equitable ground these files. Nonetheless, even though there was no claim upon which to grant the Motion to Supplement the of attorney-client privilege, the government did Record. implement a computer taint team to review files on computer disks." Absent the timely assertion of privilege, In sum, the parties were provided a sufficient opportunity the defendants cannot now complain. to develop the evidentiary record, and the defendants' request for disclosure of additional materials will be denied. Ill. Defendant's Motion to Supplement the Record Over a month after the conclusion of the evidentiary IV. Conclusion hearing, the defendants filed a motion to Compel Production and to Supplement the Record of the Accordingly, it is hereby November 4-5, 1996 Evidentiary Hearing ("Motion to Supplement the Record"). At the hearing, the Court ORDERED that the defendants' Motion to Dismiss is consistently denied the defendants' request *843 that the denied; and it is government be required to produce to the defendants copies of the government's internal memoranda, FURTHER ORDERED that the defendants' Motion to electronic mail and other materials which would reveal Supplement the Record is denied. the government's deliberations. However, in response to the defendants' repeated requests, the Court eventually IT IS SO ORDERED. ordered the government to produce certain internal documents for in camera review. The government did so, to the tune of two very full boxes of materials which document the taint team's actions and trace internal All Citations Department of Justice communications to and from Stevens and Corprew)2 The Court is not persuaded that 952 F.Supp. 834 additional disclosures are justified or that supplementation Footnotes While the Court has considered the in camera submissions of the parties (filed under seal), the Court has taken care not to disclose the specific contents of those submissions in this Memorandum Opinion. 2 The Fourth Amendment issues stemming from the search have been resolved and are not presently before the Court. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00032869 U.S. v. Neill, 952 F.Supp. 834 (1997) 3 Two categories of potentially privileged documents have been discussed in the course of litigating this motion: (1) communications between the defendants and their counsel, which in the context of this criminal proceeding have constitutional significance; and (2) communications between Denis Neill, as a lawyer, and his clients (including Kamel Fatah), which while such communications may be privileged, they have no constitutional significance here. 4 No litigation directly resulted from the taint team's review because the defendants never filed any motions for a protective order or under Rule 41(e) and because the government never contested the applicability of the attorney-client privilege or raised the crime-fraud exception. 5 IRS Special Agent Sherry Brown also attended the meeting. Her contemporaneous notes were introduced into evidence at the evidentiary hearing. See Defendants' Exhibit # 7. 6 Poole further testified that he "told them that the prosecution team would not review any of the documents as to which claims of privilege had been raised until those questions were resolved." Transcript at 75 (Vol. I—B). While it is possible, as the defendants contend, that as of the November I, 1993, meeting, the prosecutor intended to return the letterhead documents without review, whether he did so intend but later changed his mind is not relevant to disposition of the instant motion. 7 This letter does not appear to be the "smoking gun" that the government contends. While it could be construed, as the government argues, to reflect defense counsel's acknowledgment that all potentially privileged materials would be reviewed, it can also be reasonably construed to reflect counsel's understanding that he was to designate someone to assist in the segregation of "letterhead" documents from other materials so that the former could be returned without review by the government. Nevertheless, it is unnecessary to resolve this dispute in order to resolve the instant motion. The defendants also challenge Fort's presence during the search of the office of Neill and Company on October 27, 1993. However, Fon denied reviewing any documents during the search or discussing the contents of any documents with the seizing agents, see Transcript at 80-81 (Vol. I-B), and the defendants have offered no evidence to the contrary. 9 Agent Brown testified that Fort wanted her to witness that, upon finding the potentially privileged materials, he sealed them immediately and did not read them. Transcript at 84 (Vol. II-B). 10 The government consistently contended at the hearing that the materials were only "potentially" privileged. However, the decisions by the taint team to return to the defendants those documents for which the defendants asserted privilege, and to release to the prosecution team only those for which the defendants did not claim privilege, does more than imply concession. II Neither side called Agent Granger to testify at the evidentiary hearing. 12 On the other hand, the discoveries by Agent Fort are most fairly characterized as inadvertent since he happened upon potentially privileged materials after defense counsel had reviewed the boxes containing seized material. Fort testified that he was surprised to find this material because, in fact, defense counsel and support staff had already inspected and inventoried the materials. 13 Although the more traditional approach is to submit contested materials for in camera review by a neutral and detached magistrate (for obvious reasons), the case law regarding the government's "taint team" approach is equivocal. Compare In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y.I 994) (criticizing "walling" in review of disputed attorney-client materials) with United States v. Noriegp 764 F.Supp. 1480 (S.D.Fla.1991) (finding no Sixth Amendment violation where the government agent reviewing monitored attorney-client conversations was 'walled off' from prosecutors). 14 This decision is troubling indeed, and there is no doubt that, at the very least, the "taint team" procedures create an appearance of unfairness. However unwise this policy decision may be, absent a showing of harm, it does not offend the Constitution. While this Court is critical of the government's use of the "taint team" procedure, that criticism is not intended to carry over to the individual attorneys who were assigned to perform as part of the taint team. The record reflects that these attorneys appreciated the sensitivity of their assignments and took affirmative measures to ensure that no breach of the "walls" actually occurred. I5 In cross-examining the prosecution team members at the evidentiary hearing, the defendants contended that the government acquired factual information identifying certain persons and business entities. However, with the exception of Earl Glock (who was identified in a document discovered inadvertently), the government witnesses persuasively testified that those entities were known to the investigators prior to the search. This testimony was not surprising. The investigation of the Neills and their business activities dates to at least 1991, and the abundant record in this matter indicates that the scope of the investigation (even prior to the searches of October 27, 1993) was wide ranging indeed. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00032870 U.S. v. NOM, 952 F.Supp. 834 (1997) 16 As noted previously, Stevens returned certain documents without review based upon Roger's representations on or about November 15, 1993. 17 The testimony at the hearing indicated that some of the files were printed and read by at least Agent Fort prior to the computer taint team's review. Nevertheless, even though the defendants knew that the government had seized the electronic data and equipment, they have not demonstrated that they asserted their attorney-client privilege with respect to any material stored electronically. 18 The communications were not limited to those between Stevens and Corprew. 19 While interesting, Mr. Shaheen's ethics determination for departmental employees bears little, if any, relevance to the constitutional analysis under Weatherfred and Kelly. End of Document C 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00032871