For this column, I decided that I would break my mold and try something different. For the past 170+ columns, I have focused on only one case per column, but I saw something in mid-August that was just too good to pass up. Lawyers in two cases were engaging in role reversals. In the Third Circuit, a defendant’s attorney complained of the district court’s refusal to grant use immunity to a defense witness. U.S. v. Quinn, ___F.3d___, 2013 WL 4504647 (3rd Cir. 2013) [En Banc: McKee, Chief Judge, Sloviter, Scirica, Rendell, Ambro, Fuentes, Smith, Fisher, Chargares, Jordan, Hardiman, Greenaway Jr., Vanaskie, and Aldisert, Circuit Judges. (Opinion by Ambro)]. In the Southern District of New York, the prosecutor attempted to assert the attorney-client privilege on behalf of a cooperating witness. U.S. v. Martoma, ___F.Supp.2d___, 2013 WL 4502829 (S.D.N.Y., 2013) [U.S. District Judge Gardephe]. In neither case was the lawyer successful.
United States v. Quinn
Keenan Quinn was convicted of the offense of aiding and abetting his co-defendant, Shawn Johnson, in an armed bank robbery. Quinn’s defense was that he did not know that Johnson intended to rob a bank teller at gun point when he drove Johnson to the bank. At the time of Quinn’s trial, Johnson was awaiting sentencing for his conviction for the bank robbery charge. He invoked his Fifth Amendment protection against self-incrimination and refused to testify. Quinn’s lawyer urged United States District Judge Petrese B. Tucker of the Eastern District of Pennsylvania to immunize Johnson so that he could testify on Quinn’s behalf. Judge Petrese refused to do so. After he was convicted, Quinn appealed.
[Excerpts from the Opinion]
THE STATUTORY BASIS OF IMMUNITY
Immunity is a creation of the legislature, the body that defines criminal offenses and their sanctions. It removes “those sanctions which generate the fear justifying invocation of the privilege,” Ullmann v. United States, 350 U.S. 422, 431, 76 S.Ct. 497, 100 L.Ed. 511 (1956), and is akin to “an act of general amnesty,” Brown v. Walker, 161 U.S. 591, 601, 16 S.Ct. 644, 40 L.Ed. 819 (1896).
Under the federal witness immunity statute, “no testimony or other information compelled . . . (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” 18 U.S.C. § 6002. This is known variously as use and derivative use, or use and fruits, immunity (shortened to use immunity throughout this opinion). Congress has given the Attorney General the authority to exchange the protection of immunity for otherwise incriminating testimony when, “in his judgment,” a witness’s testimony “may be necessary to the public interest.” § 6003(b). Because this protection “is coextensive with the scope of the [Fifth Amendment] privilege against self-incrimination,” a Court can hold an immunized witness in contempt for refusal to testify. Kastigarv. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
Congress granted this authority to the Executive Branch because immunity is a prosecutorial tool. Often those with pertinent knowledge about criminal offenses have engaged in unlawful behavior themselves. Granting immunity enables the Government to elicit testimony that would otherwise be protected by the Fifth Amendment privilege against self-incrimination.
Congress has not given criminal defendants any similar power to seek immunity for their witnesses. Nor has it authorized the federal courts to immunize a witness. Instead, under § 6002 a district court’s role is to grant immunity when it is requested by the Attorney General or his designee. Though a court reviews the Government’s request for procedural compliance with the statute, it does not consider whether the Government has correctly determined if immunity is in the public interest. Pillsbury Co. v. Conboy, 459 U.S. 248, 254 n. 11, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (“Congress foresaw the courts as playing only a minor role in the immunizing process. . . .”); Herman, 589 F.2d at 1201 (“There is . . . overwhelming judicial and legislative authority for the proposition that review on the merits of a federal prosecutor’s decision to grant immunity is barred by statute.”); see also United States v. Taylor, 728 F.2d 930, 934 (7th Cir.1984) (describing this review as “ministerial”).
Quinn fails to show that the Government interfered unconstitutionally with Johnson’s decision not to testify. We thus affirm.
U.S. v. Martoma
Matthew Martoma was indicted for one count of conspiracy to commit securities fraud and two substantive counts of securities fraud. The indictment alleged that Martoma received inside information for a cooperating witness—Dr. Sidney Gilman—and traded securities on the basis of that inside information.
At the time of the conspiracy Gilman was employed by the University of Michigan, and was using computers, an iPhone, an iPad, and five external flash drives belonging to the University.
Gilman had permitted the FBI to copy the hard-drive of the laptop computer provided by the University. Both Gilman’s counsel and the Government acknowledged that the hard-drive contained potential “confidential information.”
Gilman resigned from the University of Michigan and returned all the electronic devices that had been issued to him. Gilman asserted that in doing so, “neither [he] nor any other privilege holder waives any applicable privilege(s).” After he was indicted, Martoma requested that the Government produce a copy of Gilman’s hard-drive. Gilman’s counsel advised the Government that some of the documents on the hard-drive appeared to be privileged and the Government declined to comply with Martoma’s request.
Martoma then moved to compel the Government and/or the University to produce the documents withheld on the basis of Gilman’s assertion of the attorney-client privilege. The Government filed an opposition to Martoma’s motion, asserting the attorney-client privilege. Gilman moved to intervene to oppose Martoma’s motion and for a protective order barring the production of the allegedly privileged communications.
[Excerpts From the Opinion]
THE GOVERNMENT LACKS STANDING TO ASSERT DR. GILMAN’S ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege “can be asserted only by the client (or one authorized to do so on the client’s behalf).” In re Sarrio, S.A., 119 F.3d 143, 147 (2d Cir.1997); see also In re von Bulow, 828 F.2d 94, 100 (2d Cir.1987) (attorney-client privilege “belongs solely to the client”).
The Government contends, however, that it has standing because it has “a legitimate and compelling interest in acting ethically and consistently with the rules of professional conduct in not releasing to the defendant (or reviewing itself) documents over which a witness has made a non-frivolous claim of privilege.” (Gov’t Br. 8) While the Government may have an ethical obligation to bring the privilege issue to the Court’s attention, that obligation does not confer standing on the Government to assert privilege on Dr. Gilman’s behalf under the circumstances of this case. See United States v. Smith, 454 F.3d 707, 713 (7th Cir.2006)
DR. GILMAN’S MOTION TO INTERVENE WILL BE GRANTED
“The Federal Rules of Criminal Procedure make no reference to a motion to intervene in a criminal case.” United States v. Aref, 533 F.3d 72, 81 (2d Cir.2008).
Nevertheless, “it is settled law that persons affected by the disclosure of allegedly privileged materials may intervene in pending criminal proceedings and seek protective orders. . . .”
A third-party’s reasonable assertion of privilege with respect to documents to be produced in a criminal action is sufficient grounds on which to grant the third-party’s motion to intervene and to consider the merits of that party’s application. Accordingly, Dr. Gilman’s motion to intervene will be granted.
For the reasons stated above, the Government lacks standing to oppose Defendant’s motion to compel. Dr. Gilman’s motion to intervene to oppose Defendant’s motion to compel is granted.
- When I saw the holding in Quinn, I thought that Quinn’s lawyer had lost his mind when he requested the district court to grant use immunity to a co-defendant; however, I did not realize that this had been permitted in the Third Circuit for more than 30 years. In 1980, United States Court of Appeals for the Third Circuit held that if the Government has refused to immunize the witness, the defendant is entitled to immunity for his witness if the testimonial evidence is “clearly exculpatory and essential to the defense case and… the government has no strong interest in withholding use immunity.” Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) In Quinn, the en banc court over-ruled Smith and brought the Third Circuit in line with the other Circuits.
- In Martoma, it’s hard to criticize a prosecutor who is being sensitive to a privilege issue. Even though his assertion of the attorney-client privilege was without a basis in law, I appreciated his enthusiasm—and the opinion has some good language about a witness’ right to intervene on a privilege issue.
- If there is a lesson from these cases, it is this: It doesn’t hurt to reach a little when you’re trying to be a good lawyer.