Opposition Brief — Linder v. United States

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Supreme Court, U.S.

FILED

DEC 28 1984

No. 84-67

ALEXANDE®: L. STEVAS

UnTwreiy

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

JAMES L. LINDER, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

Department of Justice

Washington, D. C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Clark v. United States, 289 U.S. 1 ...........4.. l

Gerstein v. Pugh, 420 U.S. 103 ............56-- 3

Grand Jury Proceedings (Pavlick), In re,

SEE Sek chirki date badesivessovescs 3

John Doe Corp., In re, 675 F.2d 482 ........... 3

Sealed Case, In re, 676 F.2d 793 .........00008: 3

Statute:

a PUD Fiche eeercees Saccesinecoesse 2

(I)

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-67

JAMES L. LINDER, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner intervened in these contempt proceedings

against an attorney who had been subpoenaed to testify and

produce documents before a grand jury in the Southern

District of California. Petitioner contended that the attor-

ney’s testimony and production of documents would violate

the attorney-client and work-product privileges.

1. The grand jury was investigating allegations of fraud

and the payment of kickbacks in connection with the award

by San Diego County to Telink, Inc., of a $24.5 million

contract for the installation of a new telephone system.

Petitioner was the director of marketing for Telink.

The briefs and record in this case were submitted to the

court of appeals under seal, and we therefore shall not cite

to the record. However, after the certiorari petition was

filed, an indictment was returned against petitioner and

others, charging racketeering, conspiracy, and mail fraud.

The indictment describes in detail the allegations of fraud

(1)

2

and kickbacks concerning the San Diego contract. Indict-

ment at 38-55, 56-61.! The contract was cancelled by the

County after the allegations of fraud were made public. A

legal dispute then arose between Telink and the County

concerning the cancellation, but that dispute was settled on

May 6, 1983, when the County agreed to pay Telink $2.4

million, plus an additional amount of up to $500,000 in

equipment restocking charges, in return for Telink’s drop-

ping of its $57 million claim against the County. Petitioner

and others are charged in the pending indictment with, inter

alia, having caused Telink’s attorney to submit false and

fraudulent documentation to the County Board of Supervi-

sors in connection with the dispute, thereby fraudulently

inducing the County to settle. Indictment at 56-61.

The subpoena issued to Telink’s attorney during the

grand jury investigation directed him to produce certain

documents pertaining to communications between the

attorney and petitioner and others affiliated with Telink

that related to the contract dispute with San Diego County.

See Pet. 5-6. Petitioner contended that he had an attorney-

client relationship with the attorney and that disclosure of

the information covered by the subpoena would violate the

attorney-client and work-product privileges. The govern-

ment contended that those privileges had been waived by

virtue of public disclosures made in letters sent by the

attorney to the County and that the crime-or-fraud excep-

tion to the privileges applied.

The district court ordered the attorney to testify, and held

him in contempt pursuant to 28 U.S.C. 1826 when he

refused to do so. The court of appeals affirmed the order of

contempt in a brief memorandum opinion. It held that the

attorney’s voluntary public dissemination of summaries of

his investigation into alleged improprieties on the part of

'We have lodged a copy of the indictment with the Clerk of the Court.

3

Telink officials constituted a waiver of the privileges and

that, in any event, the government had produced sufficient

evidence to establish that the attorney’s services were

secured in furtherance of a continuing fraud upon the

County, and therefore fell within the crime-or-fraud excep-

tion to the privileges (Pet. App. Al).

2. Petitioner filed the instant petition for a writ of certio-

rari seeking review of the court of appeals’ holding. How-

ever, we have been informed by the United States Attor-

ney’s Office that after the court of appeals rendered its

decision and petitioner failed to obtain a stay, the attorney

complied with the subpoena. Moreover, as noted above, an

indictment has now been returned by the grand jury. As a

result, there no longer is a live controversy concerning the

application of the attorney-client and work-product privi-

leges — or any questions concerning waiver or the crime-or-

fraud exception — as regards the attorney’s appearance

before the grand jury.

It is conceivable that the question of privilege could arise

again at trial. But if the attorney actually is called to testify

at trial, it would seem that the return of the indictment

charging that the attorney’s services were secured in further-

ance of a continuing fraud upon the County would itself be

sufficient to invoke the crime-or-fraud exception to the

attorney-client privilege recognized by this Court in Clark

v. United States, 289 U.S. 1, 15 (1933), and presumably to

invoke the identical exception to the work-product privi-

lege as well.2 See Gerstein v. Pugh, 420 U.S. 103, 117 n.19

2Contrary to petitioner’s contention (Pet. 10-12), it plainly was

appropriate for the district court, prior to the return of the indictment,

to rely on the detailed affidavit submitted by the government to estab-

lish the prima facie showing necessary for application of the crime-or-

fraud exception. A mini-trial on that issue was not required. See, e.g., /n

re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1028-1029 (Sth

Cir. 1982) (en banc); Jn re Sealed Case, 676 F.2d 793, 814-815 (D.C. Cir.

1982); In re John Doe Corp., 675 F.2d 482, 489-491 (2d Cir. 1982).

4

(1975). However, any question of privilege that might arise

at trial of course is not presented in the instant certiorari

petition. But even if it were, it would be presented in an

interlocutory posture. If the attorney testifies at trial and if

petitioner is convicted, petitioner may raise his privilege

claim and any other issues in an appeal of his conviction.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

DECEMBER 1984

DOJ-1984-12

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