Opinion
CRIMINAL ACTION NO: 96-207 SECTION: "R".
September 1, 2000.
ORDER AND REASONS
Before the Court is defendant Larry S. Bankston's motion for a new trial pursuant to Federal Rule of Criminal procedure 33. He also requests disclosure of Title III wiretap information and an evidentiary hearing. For the following reasons, defendant's motions are denied.
I. BACKGROUND
During the course of an investigation of Edwin Edwards, a court-approved wiretap of his law office recorded a number of conversations. Among those conversations were some discussions between Larry S. Bankston's attorneys and Stephen and Edwin Edwards about the Bankston criminal case. The Government states that these conversations were immediately referred to Assistant United States Attorney Albert Winters, Jr., who was not part of the prosecution team in either investigation, to determine whether they should be sealed as potentially privileged. After reviewing the conversations, Winters instructed the FBI to seal two recordings (March 24, 1997 and April 24, 1997) that contained discussions of trial tactics. He also determined that two other recordings (March 9, 1997 and April 17, 1997) contained no defense strategy, and they were not sealed.
Before trial, on May 6, 1997, Bankston filed a motion questioning whether his trial strategy and tactics had been revealed to the Bankston prosecution team. After twice meeting with Winters ex parte to discuss the government's "Chinese Wall," the Court determined that "no special agents, witnesses, or government prosecutors in this case have been exposed to any conversations, information, strategies, or documents which relate in any way to the defense in the instant case." United States v. Cleveland, Cr. No. 96-207 (E.D. La. May 7, 1997).
Three years later, and after the conclusion of his direct appeal in which his conviction was affirmed, Bankston reasserts that the government recorded privileged conversations that revealed his trial strategy to the Bankston prosecution team. In an affidavit, Bankston's counsel, Karl J. Koch, declares that he uncovered new evidence that Larry Jones and Susan Phillips, case agents for the government in the Bankston case, had been wiretap monitors in the Edwards wiretap. He further declares that Jones monitored at least a portion of a conversation in which he consulted with Stephen Edwards as a lawyer about "critical matters dealing with the Bankston defense." (July 31, 2000 Koch Aff. at 2.) Mr. Koch says that he does not recall the "precise conversation," and he gives no date of the conversation. Based on this new evidence and concerns that there were leaks in the Chinese Wall, Bankston moves for a new trial, access to the Edwin Edwards Title III wiretap records, and an evidentiary hearing.
II. DISCUSSION
A. Motions for New Trial Are Disfavored
Pursuant to Federal Rule of Criminal Procedure 33, a party may move "for new trial based on newly discovered evidence . . . within three years after the verdict or finding of guilty." FED. R. CRIM. P. 33. Notwithstanding this provision, however, "Rule 33 motions based on newly discovered evidence `are disfavored by the courts and therefore are viewed with great caution.'" United States v. Lopez-Escobar, 920 F.2d 1241, 1246 (5th Cir. 1991) (quoting United States v. Fowler, 735 F.2d 823, 830 (5th Cir. 1984)). See also United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997) ("Although grant or denial of the motion is entrusted to the sound discretion of the judge, motions for new trial are not favored, and are granted only with great caution." (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)))
B. New Evidence
As a threshold matter, the Government contends that Bankston's motion is time barred and unfounded because he fails to present any newly discovered evidence as required by Rule 33. (Gov't's Sealed Opp'n at 1.) See also United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979) ("The [movant] ha[s] the burden of proving that his evidence [is] in fact newly discovered and that his failure to discover it prior to verdict was not due to his lack of diligence."). Apart from unsworn speculations, the only arguably new evidence that Bankston offers is that Larry Jones, the case agent for the Government in the Bankston criminal proceeding, allegedly monitored at least a portion of a conversation in which Karl J. Koch consulted Stephen Edwards as a lawyer for legal advice. (July 31, 2000 Koch Aff. at 2.) In his affidavit, Mr. Koch declares that during that conversation "critical matters dealing with the Bankston defense were discussed." ( Id.) Bankston proffers no evidence that any of the prosecutors obtained or used any of the information, which Larry Jones may have overheard. While the Court questions whether defendant actually presents any "new" evidence, the Court will consider it as "newly discovered" for the purposes of this motion.
C. Attorney-Client Privilege
The predicate for Bankston's motion for a new trial is that the Government recorded conversations covered by Bankston's attorney-client privilege. In asserting this privilege, Bankston "bears the burden of proving the existence of an attorney-client relationship." United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985). Where the privilege exists, it
protects communications from the client to the attorney made in confidence for the purpose of obtaining legal advice. It shields communications made from the lawyer to the client only to the extent that these are based on, or may disclose, confidential information provided by the client or contain advice or opinions of the attorney.United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994) (quoting Wells v. Rushing, 755 F.2d 376, 379 n. 2 (5th Cir. 1985)). See also In re Grand Jury proceedings, 517 F.2d 666, 670 (5th Cir. 1975) (defining attorney-client privilege). There is no confidentiality, however, "when disclosures are made in the presence of a person who has not joined the defense team, and with respect to whom there is no reasonable expectation of confidentiality." United States v. Melvin, 650 F.2d 641, 646 (5th Cir. 1981)
Here, the Government recorded conversations between Karl J. Koch and Stephen Edwards and between Lewis Unglesby and Edwin Edwards dealing with the Bankston case. The Government submitted these tapes under seal for the Court's review. The Court finds that none of these recorded conversations is covered by Bankston's attorney-client privilege.
First, the Court finds that there is no credible evidence that Stephen Edwards ever acted as an attorney for Bankston. Indeed, that contention is belied by the tape provided by the Government. In the recorded conversation, Mr. Koch does not seek legal advice from Stephen Edwards about Bankston's trial strategy, under even the most tendentious interpretation of the tape. Furthermore, there is no evidence that Larry Bankston ever considered Stephen Edwards as his attorney or that Stephen Edwards regarded him as a client. There are no conversations, bills, retainer agreements, payments, or any other contemporaneous evidence to that effect. Further, the conversation in issue makes clear that Mr. Koch and Mr. Unglesby were the lawyers for Bankston, not Stephen Edwards. Moreover, while Stephen Edwards may happen to be an attorney, neither that professional status nor Mr. Koch's characterization of their relationship transforms their conversation into a privileged communication. Mr. Koch simply volunteered information about the Bankston case to a third party. Therefore, Mr. Koch's comments to Stephen Edwards are not protected as privileged.
Second, the Court finds that Edwin Edwards was not a member of the Bankston defense team because there is no evidence that an attorney-client relationship existed between Bankston and Edwin Edwards. Indeed, in one of the recorded conversations, Mr. Unglesby tells Edwin Edwards that he is a witness in the Bankston case, in another he discusses a motion already filed in the record, and in the last they discuss Edwin Edwards's trial testimony. There is no suggestion on the tapes that Edwin Edwards views himself as Bankston's lawyer. Nor is there any contemporaneous evidence of an attorney-client relationship between them. From the beginning of the criminal trial, Mr. Unglesby made clear that Edwin Edwards would be a defense witness, and he openly disclosed the nature of Edwards's expected testimony. In the course of the criminal trial Edwin Edwards testified on Bankston's behalf. As counsel is presumably aware, Rule 3.7 of the Louisiana Rules of Professional Conduct precludes counsel from testifying for his client. Therefore, counsel could not have ethically called Edwin Edwards as a witness if he were Bankston's attorney.
As the Court finds that neither Stephen nor Edwin Edwards served as Bankston's attorney, any recorded disclosures are not protected by the attorney-client privilege. Moreover, even if Stephen and Edwin Edwards were Bankston's attorneys, there is no evidence that any conversation with the Edwardses regarding the Bankston criminal trial was used to Bankston's prejudice.
D. Sixth Amendment
1. Attorney-Client Privilege
The attorney-client privilege is merely a rule of evidence, which has not yet been held to be a constitutional right. See, e.g., Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985) "In some situations, however, government interference with the confidential relationship between a defendant and his counsel may implicate Sixth Amendment rights." Id. Here, Bankston not only pleads a violation of his Sixth Amendment right to the effective assistance of counsel, but also suggests that the Sixth Amendment creates protection broader than the attorney-client privilege. (Mem. Supp. Mot. New Trial at 4.)
In Melvin, the Fifth Circuit rejected that proposition in the context of a claim that the Government intruded into strategy meetings between a defendant and defense counsel by way of a co-defendant-turned informant. The court said that the attorney-client privilege was the appropriate framework of analysis for this type of Sixth Amendment claim. Thus, in this context, the privilege must exist before the Sixth Amendment can be violated. The court found that a communication "is protected by the attorney-client privilege and we hold today is protected from government intrusion under the Sixth Amendment if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential." Melvin, 650 F.2d at 645. See also United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1986) (citing Melvin with approval). The court then observed: "[T]here is no confidentiality when disclosures are made in the presence of a person who has not joined the defense team, and with respect to whom there is no reasonable expectation of confidentiality." Melvin, 650 F.2d at 646. See also Bell, 776 F.2d at 972.
Although Bankston attempts to distinguish Melvin on its facts, the Court finds Melvin to be on point. Bankston claims that the Government purposefully intruded into the attorney-client relationship by intercepting his lawyers' strategy discussions unbeknownst to him. The Court, however, does not see a principled reason why a wiretap should be treated differently than when the government sends an informant into a defendant's strategy meeting unbeknownst to the defendant's lawyers.
Stephen and Edwin Edwards were not members of the Bankston defense team, and they had no common legal interests with him. Under these circumstances, Mr. Unglesby and Mr. Koch had no legally cognizable expectation of confidentiality in their presence that is protected by the attorney-client privilege. That they may have trusted the Edwardses not to repeat their conversations because of personal friendship or a mutual distaste for federal investigators does not change this result. Therefore, Bankston's Sixth Amendment rights were not violated because there was no Government intrusion into Bankston's attorney-client privilege.
2. Work Product
Although not stated as such, Bankston's claims could implicate the work-product doctrine, which is different from the attorney-client privilege. The work-product doctrine protects the mental impressions of the attorney in preparing his client's case. See United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160 (1975) ("At its core, the work-product doctrine shelters the mental processes of the attorney . . . ."). Of the four tapes at issue, two arguably constitute work product. The two unsealed tapes are not work product because they contain no discussions of defensive strategy or tactics. The two sealed tapes, however, record conversations between Lewis Unglesby and Edwin Edwards wherein they discuss, inter alia, that Edwards would be a defense witness and Edwards's witness testimony. See International Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975). There are no cases holding that Government interception of a defense attorney's work product is a per se violation of the Sixth Amendment. Indeed, if a work-product violation were to offend a Sixth Amendment right, the defendant would have to prove the same prejudice as that demanded in the context of the attorney-client privilege. As Bankston tenders no evidence of prejudice, the Court rejects this Sixth Amendment claim, even assuming the two sealed tapes contain work product.
E. Prejudice
In Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837 (1977), the United States Supreme Court rejected a per se rule that any governmental intrusion into privileged attorney-client conversations violates the Sixth Amendment. Instead, the Supreme Court considered four factors to determine whether a criminal defendant's rights were violated by the Government's intrusion: (1) whether any of the government's evidence originated in privileged material; (2) whether the privileged material was used in any other way to the "substantial detriment" of the defendant; (3) whether the privileged material was communicated to the prosecutors; and (4) whether the government intentionally intruded on the attorney-client relationship. See Weatherford, 429 U.S. at 554, 97 S.Ct. at 843. See also United States v. Steele, 727 F.2d 580, 585 (6th Cir. 1984); United States v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981). Accordingly, this test must be satisfied for a Sixth Amendment violation to be found.
Even if Bankston were to establish a Sixth Amendment violation, to be entitled to a remedy he would still have to prove that the violation had an "adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense." Melvin, 650 F.2d at 644 (quoting United States v. Morrison, 449 U.S. 361, 365, 101 S. Ct. 665, 668 (1981)). See United States v. Fortna, 796 F.2d 724, 33 (5th Cir. 1986) (noting that a showing of prejudice is necessary to set aside a conviction); United States v. Zarzour, 432 F.2d 1, 4 (5th Cir. 1970) (A wiretap does not, "in and of itself, vitiate the conviction without a further showing that the government's evidence was `tainted.'"). See also Clark v. Wood, 823 F.2d 1241, 1250-51 (8th Cir. 1987) (burden on movant to prove specific facts showing communication of privileged information to the prosecutor and the resulting prejudice); United States v. Ginsberg, 758 F.2d 823, (5th Cir. 1985) (same). For without a showing of "demonstrable prejudice, or substantial threat thereof," a new trial is inappropriate. United States v. Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991) (quoting Morrison, 449 U.S. at 365, 101 S.Ct. at 668).
Bankston, however, fails to satisfy any of the Weatherford factors, and he shows no prejudice. First, he does not argue that the Government presented any privileged information at his trial. Second, Bankston presents no evidence that the Government used any privileged information to his substantial detriment. Third, there is no evidence that the prosecutors were privy to any information Larry Jones allegedly had. Further, even if Larry Jones had knowledge of a conversation he monitored, and he testified at trial, that is not enough to make a Sixth Amendment violation under Weatherford. See Weatherford, 429 U.S. at 556 97 S.Ct. at 844. Fourth, there is no evidence that the Government conducted the Edwards wiretap for the purpose of intruding on Bankston's attorney-client privilege. Therefore, in the absence of any prejudice, the Court must deny Bankston's motion for a new trial.
F. Access to Government Records
To develop additional bases for his motion for a new trial, Bankston seeks an evidentiary hearing "in which the [G]overnment would be required to disclose relevant portions of the Title III wiretap material relating to Edwin and Stephen Edwards." (Mot. New Trial at 5.) Specifically, Bankston seeks access to a broad swath of materials including audio/video recordings, logs, 10-day reports, and interdepartmental communications. ( Id. at 5-6.) The Court denies this request. First, "[a] motion for a new trial can ordinarily be ruled upon without conducting an evidentiary hearing." United States v. Simmons, 714 F.2d 29, 30 (5th Cir. 1983). See also United States v. Blackburn, 9 F.3d 353, 358 (5th Cir. 1993) ("A motion for new trial may be ruled on without an evidentiary hearing, and the decision to hold a hearing rests within the sound discretion of the trial court."). Second, the Court will not countenance a fishing expedition for parties seeking to substantiate mere speculations in the absence of any evidence of a likely Sixth Amendment violation. See, e.g., Zarzour, 432 F.2d at 4 ("no right to rummage in government files"); United States v. Stassi, 431 F.2d 353, 354 (5th Cir. 1970) (same). The Government said that it has produced all of the relevant recordings of Stephen and Edwin Edwards for the Court's review. Bankston presents no contradictory evidence other than Mr. Koch's "belief" that "at least a portion" of a conversation between him and Stephen Edwards dealing with Robert Miller was monitored by Larry Jones, but he does not recall the precise conversation or the date it occurred. The Court finds this to be insufficient. Even if the Court accepted Mr. Koch's belief as true, it still would not establish that the conversation was protected by Bankston's attorney-client privilege. Furthermore, there is no evidence that this conversation was communicated to the prosecutors, was used at trial, or was used to Bankston's detriment in any other way. Nor is there any showing of other prejudice or a substantial threat of prejudice. Therefore, satisfied that neither discovery nor an evidentiary hearing is necessary, the Court denies Bankston's request.
III. CONCLUSION
For the foregoing reasons, the Court denies defendant'S motion for a new trial as well as his requests for disclosure of Title III wiretap information and an evidentiary hearing.
New Orleans, Louisiana, this 1st day of September, 2000.