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USCA1 Opinion

April 25, 1996


United States Court of Appeals
For the First Circuit
____________________

No. 95-1190

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES MARTIN EDGAR,

Defendant, Appellant.

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on April 19, 1996, is amended


follows:

On page 19, delete footnote 9 in its entirety.

United States Court of Appeals


For the First Circuit
____________________

No. 95-1190

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES MARTIN EDGAR,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]


___________________

____________________

Before

Selya, Stahl, and Lynch,

Circuit Judges.
______________

____________________

Frances L. Robinson, with


____________________

whom Davis, Robinson & White was


_________________________

brief, for appellant.


James C. Rehnquist, Assistant
___________________

United States

Donald K. Stern, United States Attorney, was on


_______________
States.

____________________

April 19, 1996


____________________

Attorney, with w

brief, for the Uni

LYNCH,
LYNCH,

formerly

Circuit Judge.
Circuit Judge.
______________

U.S.

convicted of three

federal

Department

mail fraud arising from a

He was

bankruptcy fraud.1

Commerce

counts of making false

workers' compensation

an insurer.

of

Charles

claims, and

Edgar,

employee,

was

statements on his

of one

count of

false automobile accident claim to

acquitted on

Edgar

Martin

other charges,

was sentenced to one year

including

and one

day plus two years of supervised release and was fined $5000.

His

appeal argues that

fraud, workers'

joinder of

compensation fraud and

improper, as was the

the bankruptcy

insurance fraud

refusal to sever.

He

was

strongly asserts

reversible error in the testimony of his civil-claim attorney

before

the

grand

jury

which,

he

alleges,

violated

his

attorney-client privilege.

He also

materiality of the alleged

false statements should have been

submitted to

the jury

under the

argues that the issue of

rule established later

in

United States v. Gaudin, 115 S. Ct. 2310 (1995), that denying


_____________
______

him

discovery

was

error,

and

that

insufficient to convict in any event.

the

was

We affirm.

Two arguments merit close discussion.

that it was improper

evidence

Edgar argues

and harmful for the government

to have

____________________

1.

The court granted Edgar's motions for acquittal on eleven

counts
claims,

of

mail fraud

based

on

the workers'

compensation

on one count of using a false social security number

in connection with

his bankruptcy, and

bankruptcy

The jury returned a verdict of not guilty

on

fraud.

on eleven counts

of

one count of making false statements to the Department of

Labor and could not reach a verdict on nine other counts.

-22

joined such disparate charges as workers' compensation fraud,

auto

insurance

fraud and

bankruptcy

fraud

into a

single

indictment, saying the common allegation of fraud is too weak

a thread to sew them all together, and that the counts should

have been severed.

While the argument has some force, he was

acquitted on the bankruptcy charge and we find no harm to him

from its joinder with the other charges.

Edgar also argues

his attorney-client

process.

The

lawyer who

claim.

about

that the government trampled

privilege and

government subpoenaed

had represented Edgar on

that this denied

to the

on

him due

grand jury

the

the automobile accident

The lawyer's initial declinations to answer questions

Edgar's communications

privilege gave

way in the

on grounds

of attorney-client

face of continued

questioning by

the

prosecutor.

attorney's

before

there

Edgar

grand jury

trial.

says

he

first

testimony after

learned

he was

of

his

indicted and

While troubled by what happened, we find that

was no prejudice to

Edgar at trial

and therefore his

remedy, if any, is not the vacating of his conviction.

Background
__________

Edgar's

checkered

status undergirds all counts

1984 Edgar

filed claims

reporting

on

his

employment

on which he was convicted.

for compensation

to the

Office of

Workers' Compensation Programs ("OWCP") of the Department

Labor

In

of

based on back injuries suffered in a 1981 plane crash,

-33

allegedly work-related.

claim

of

total

The

disability

claim eventually ripened

from

1987

on.

The

to a

federal

government paid him benefits, after objecting, for injury for

the period

from 1981 through 1986.

It had balked at paying

beyond 1986, but Edgar again won on appeal and he was paid to

1989.

certain

In

May of

1991, in

periods between

an effort

1989 and

to get

1991, he

payments for

submitted three

forms CA-8 to the OWCP.

These documents formed the basis for

the counts of conviction.

forms

CA-8

forms are

as well

On other dates, he submitted other

as forms

important to

EN1032-0389 ("1032").

the OWCP in

considering claims

These

for

continuing compensation.

The forms CA-8 required that certain information be

provided

if

information is

earning

the

claimant

used by OWCP

was

working.

to determine a

The

employment

claimant's wage

capacity, and thus the level of his benefits.

Edgar

was in fact working as a self-employed accountant during this

period, but he did not provide the information required.

did

he mention that he operated and

also

owned, from

that

he was

1985 to

1990.2

neither self-employed

Nor

managed a bar, which he

Instead,

Edgar reported

nor employed

by others.

The

forms

include

warning that

any

"false

statement,

____________________

2.

During the

time for

which he claimed

also attended law school.


practice law

He eventually became

in Massachusetts,

his conviction in this case.

disability, Edgar

but was

licensed to

suspended following

In the Matter of Edgar, No. 95______________________

004BD (Bd. of Bar Overseers Jan. 20, 1995).

-44

misrepresentation,

the

[or] concealment

of fact"

submitter to a felony prosecution.

were not material,

down on

this claim.

as the department had

But,

could subject

Edgar says the forms

already turned him

based in part on

those forms, he

did receive continuing compensation for the post-1989 period.

All told, he received more than $250,000 in benefits from the

government.

In January 1987 Edgar was involved in an automobile

accident and asserted he injured his back and could not work.

Attorney

Robert Koditek

represented him

in his

claims for

injury and lost income against the other driver's insurer and

to

his

own

insurance

carrier, Commercial

Union.

Edgar

submitted a form to his own insurer, purportedly executed

by

a company bookkeeper but in fact forged by Edgar, stating, as

to lost income, that his accounting company paid him a yearly

salary of

$45,600.

Attorney

Koditek, representing

submitted a demand letter to Commercial Union

1988,

asserting that

result of the auto

be

paid him.

lost

income,

federal income

1987."

Edgar had

the letter

been totally disabled

Edgar's claim

attached

tax returns

Those signed

for

returns

$62,392 and for 1986 of

any tax return

on October 12,

accident and demanding the

In support of

in either

$61,876.

"copies

the years

showed

as a

policy limits

for damages for

of Mr.

Edgar's

1985, 1986,

income for

But Edgar had

1985 or 1986;

-55

Edgar,

so, the

1985

and

of

never filed

government

charged, the representation was false.

Commercial

Union settled Edgar's

Attorney Koditek

him

On January 16, 1989,

claim, paying him $75,000.

testified at trial that

with the copies of

the tax returns

Union to support his claim.

Joinder and Denial of Motion for Severance


__________________________________________

Edgar had supplied

given to Commercial

The

37 count

indictment

returned

charged

three

fraudulent

schemes.

charged

Edgar

with

fraud, alleging

wrongfully

mail

obtained money

the disability checks)

Department of Labor.

with

Another count

through the

first

his employment and earning

his disability

claim

false

counts

Edgar

had

to the

premised on Edgar's

from

capacity in

1989 to

1992.

through Attorney

documents and a demand letter making false

statements to his automobile insurer in 1988.

twelve

that

Edgar

mails (specifically,

involved Edgar's submission,

Koditek, of false

24

and had made false statements

These counts were

falsely representing

connection

The

against

The remaining

counts charged Edgar with filing documents containing

statements

bankruptcy.

in

1991

The scheme

in

alleged

connection

was

that

with

Edgar's

Edgar filed

bankruptcy

petition

in

California,

falsely

representing

California was his state of domicile, listing a false

security

number and

concealing assets

former wife and other creditors.

-66

and income

social

from his

Edgar argues that

schemes

should

not

insufficiently

enough

that

trial

have

similar.

characteristic,

the counts charging these

been

joined

He argues

because

that the

they

were

single common

misrepresentation of material facts, was not

to satisfy the standards for joinder.

evidence of

one scheme

on another scheme and

the evidence

three

of

one fraud

would not

be admissible

thus the jury

that

He also argues

in a

could infer from

Edgar was

predisposed

to

engage in another fraud.

Edgar's argument that there was an improper joinder

of claims against

court refused

first

him in the indictment, which

to undo,

that there

was

raises two

concerns.

not sufficient

the district

Edgar argues

similarity among

the

counts

of

conviction

to

permit

joinder.

Second,

he

postulates a harmful spillover effect from all of the counts,

even those on

which he was

and led to his

conviction.

the initial wrongful joinder,

acquitted, which prejudiced

He also claims that,

him

apart from

the district court should have

allowed his motion for severance.

The standard for joinder is set forth in Rule 8(a),

Fed. R. Crim. P., which provides:

Two or more

offenses may

be charged

in

the same indictment . . . if the offenses


charged . . . are

of the same or similar

character . . . .

"Similar" does not mean "identical," United States v. Werner,


_____________
______

620

F.2d 922,

928 (2d

Cir. 1980),

and similarity

must be

-77

analyzed

time

in terms of how the

of indictment.

government saw its case at the

United States v. Natanel, 938 F.2d 302,


_____________
_______

306 (1st Cir. 1991), cert. denied,


____________

502 U.S. 1079 (1992).

Judge Friendly commented in Werner, under the mandate of


______

Speedy Trial Act,

joinder serves the purposes

As

the

of economy of

resources.

620

from misjoinder

Chambers,
________

964

misjoinder is

F.2d at 928.

Denial of

is

de novo.

F.2d

reviewed

1250

(1st

not reversible

Cir.

if it

a motion for relief

United States
______________

1992).

was

Further,

harmless.

v.

United
______

States v. Lane, 474 U.S. 438, 444-50 (1986); United States v.


______
____
_____________

Randazzo, __
________

F.3d __, __,

No. 95-1489,

slip op. at

6 (1st

Cir. Apr. 8, 1996).

Edgar also argues that

his motion

granted.

to sever the

even if joinder was proper,

different schemes should

Under Rule 14, Fed. R.

have been

Crim. P., "[i]f it appears

that a defendant . . . is prejudiced by a joinder of offenses

. ., the court may order . . . separate trials of counts."

The denial of a motion for severance is reviewed for abuse of

discretion, and must

showing of

be affirmed unless

evident prejudice."

there is a

United States
_____________

"strong

v. O'Bryant,
________

998 F.2d 21, 25 (1st Cir. 1993).

In

determining whether counts are properly joined,

this court considers such factors as "whether the charges are

laid

under the

same statute,

whether they

involve similar

victims, locations, or modes of operation, and the time frame

-88

in which the

Taylor,
______

occurred."

United States
_____________

v.

54 F.3d 967, 973 (1st Cir. 1995) (internal citations

omitted).3

because

charged conduct

The government argues

the workers'

accident fraud

that the test is satisfied

compensation fraud and

involved the

the automobile

same modus operandi


______________

of claimed

total disability following an asserted injury to the back, an

asserted

loss of

income, the

submission of

false official

forms, and the misrepresentation of other employment in order

to

rake

in

compensation

large

fraud

sums.

overlapped

As

to

the

timing,

auto

the

insurance

workers'

fraud.

Witnesses and testimony

the

auto

disability

accident

would also overlap.

fraud

would

from a back injury

be

We believe

there

on

from the plane

establish that Edgar misrepresented

capacity.

used

Evidence

the

as to

claimed

crash, and to

his earnings and earning

were

sufficient similarities

between the workers' compensation and insurance fraud schemes

to permit joinder of those counts.

____________________

3.

An earlier

case in this circuit applied an arguably more

stringent standard

for the

offenses under Rule 8(a).


F.2d
there

government to

See United States v.


___ _____________

885, 895 (1st Cir. 1993)

two charged

the

same

basic

Yefsky, 994
______

schemes,

of facts or participants'"
quoting

Levine, 546 F.2d 658, 662 (5th Cir. 1977)).


______
used

or more

(finding proper joinder where

was "'substantial identity

underlying

join two

mechanism,

United States
_____________

v.

Given that Edgar

misrepresenting

earning

capacity in
in both
we

seeking compensation lost due to

the workers' compensation and

believe

that

joinder

of the

a back injury,

auto insurance fraud,

counts

underlying

these

schemes would have been proper even under the test applied in
Yefsky.
______
decide

Given

our disposition

whether Yefsky set a


______

of this issue,

more rigid test

we need

not

for joinder of

offenses than the language of Rule 8(a) warrants.

-99

However, like the district court,

by

the

joinder of

the bankruptcy

fraud.4

we are disturbed

We

discern no

"common scheme

or plan."

95-1489,

slip op.

relating

to events

statutes

and the

possibly

other unspecified

different.

5.

in

Massachusetts.

1991, were

involve

__, No.

fraud

brought under

was Edgar's

creditors).

The

the other

charges,

different

ex-wife (and

The location

earnings.

frauds took place

modes of operation

workers' compensation

of

The bankruptcy

supposed victim

Edgar asserted an injury

loss

Randazzo, __ F.3d at
________

was

The bankruptcy filings were all with the court in

California, while

the

at

See
___

were different.

and automobile

In

insurance frauds,

to his back, which resulted

alleged bankruptcy

in the

fraud

did not

an attempt to obtain payment for an injury.

Rather,

it was allegedly an

The

primarily in

attempt to avoid obligations to

his ex-

wife, with whom

he had an

acrimonious relationship, and

to

force her to press her claim in an inconvenient forum.

Edgar claims he was prejudiced because the evidence

for

each scheme had a harmful spillover effect, and the jury

convicted him

not because

of specific evidence

showing his

____________________

4.

The district judge, in

on the bankruptcy charges


its case,

after the government had presented

noted the potential

the bankruptcy
looks

granting the motion for acquittal

fraud.

like you are

He

problems with the

said, "[T]his type

piling it on .

. . ."

of indictment
He also thought

that "th[e] bankruptcy case was transferred here to


the

other

false statement

cases"

"unusual" number of schemes alleged.

-1010

and

that

joinder of

boost up

there was

an

guilt,

man.5

but because of its perception that he was a dishonest

Specifically,

Edgar

posits

that

the

jury

heard

evidence that (1) he collected

$75,000 in settlement for the

auto

had an

insurance claim;

divorce; (3) he

false

(2) he

extremely acrimonious

filed for bankruptcy in

statements that

various properties

he

and has

resided there;

California and made

(4) he

established trusts

has owned

at different

times; (5) he filed false information in the bankruptcy court

regarding his assets and social security number.

Even assuming the

bankruptcy count was

joined, any error was harmless.

prejudice"

injurious

because

effect

verdict."

omitted);

(1995).

Lane,
____

it

or

474

did

see also O'Neal v.


________ ______

Edgar was

fraud and of

It did not result in "actual

not

influence in

U.S.

at

have

"substantial

determining

449

compensation scheme before the

the

(internal

McAninch, 115 S.
________

acquitted by the court of

several counts

improperly

of mail fraud

and

jury's

quotations

Ct. 992, 995

the bankruptcy

in the

workers'

matter went to the jury.

Of

the remaining thirteen workers' compensation counts, the jury

proved itself

capable of making distinctions:

it acquitted

Edgar of one, could not reach a verdict on nine and convicted

____________________

5.

Edgar also

claims that, had the schemes been severed, he

may have testified for one, but


expand

upon this

claim of

assertion" that he would


enough to

not another.

prejudice, and

Edgar does not


an "unexplicated

have testified at one trial

establish prejudicial

joinder.

Werner, 620 F.2d 922, 930 (2d Cir. 1980).


______

-1111

is not

United States v.
______________

on three.

The jury

discriminating

even within

the

See
___

(1st Cir.

among the evidence

any prejudice from

United States
_____________

fraud, thus

evidence on

v. Stackpole, 811
_________

1987) (jury's acquittal

suggests jury not

clearly capable

on one of

confused by joinder).

gave appropriate limiting

of

applicable to each count,

the workers' compensation

risk of

count.

thus showed itself

instructions.6

reducing

the bankruptcy

F.2d 689,

694

several counts

Moreover, the court

See Chambers,
___ ________

F.2d at 1251; United States v. Attanasio, 870 F.2d


______________
_________

964

809, 815

(2d Cir. 1989) (misjoinder can be rendered harmless by proper

limiting instruction);

joinder of defendants

cf. Lane, 474 U.S.


___ ____

under Fed.

at 450 (analyzing

R. Crim. P.

8(b)7).

The

exhibits relating solely to the bankruptcy fraud were struck.

____________________

6.
out

The court instructed


of [their]

minds any

the jurors that


reference or

they should "put

evidence concerning

Counts 1 through 11 charging mail fraud and Counts 26 through


36

charging bankruptcy fraud and

Security number,
of

law, that the

necessary

the use of

a false Social

because [the court has] ruled,


government has failed to

elements of

each of

as a matter

prove all of the

those charges."

The

court

further instructed, "You must decide the remaining charges as


if those charges that I have removed from your consideration,
mail fraud and bankruptcy fraud, were never made and as if no
evidence was submitted in support of those charges.
limit your
the

consideration. . .

government has sustained

reasonable doubt,

And you

its burden

excluding all

You must

must determine if
of proof

references

to or

beyond a
evidence

concerning Counts 1 through 11 and 26 through 37."

7.

Fed.

R. Crim. P.

8(b) allows for the

more defendants if "they are alleged to have


the same

joinder of two or
participated in

act or transaction or in the same series of acts or

transactions constituting an offense or offenses."

-1212

Some

insurance

compensation

of

the evidence

schemes

was

scheme, thus

Stackpole,
_________

811

F.2d

(analyzing

joinder

as

admissible

to

as

resulting in

at 694;

cf.
___

of defendants

Lane,
____

under

the bankruptcy

to

the

and

workers'

no prejudice.

See
___

474

U.S. at

450

Rule

8(b)).

Any

statements that Edgar filed with the bankruptcy court stating

his

income

for

the

compensation fraud

issue.

The

encompassed

by

made to

the insurance

the

on the latter

fraud were admissible

in

on the

compensation issue, particularly as they related to

substantial

conviction.

three

workers'

insurance company

Edgar's back injury and his loss of earnings.

was

the

would have been admissible

statements

connection with

workers'

years

independent

The fraud against

counts

Department of

of

submitting

evidence

on

Finally, there

the

counts

of

the insurance company and the

falsified

Labor were supported by

documents

to

the

evidence unrelated to

the bankruptcy.

Thus, Edgar

cannot

meet

his

burden

of

showing

prejudice on the denial of the motion for severance as to any

of the counts.

as

Garden-variety arguments of spillover -- such

if the jury found defendant guilty of A, that alone would

lead to

the conclusion that

he was

guilty of B

more, are insufficient to require severance.

at 973.

-- without

Taylor, 54 F.3d
______

Appellants must demonstrate actual prejudice.

That

is a particularly difficult burden for Edgar to meet, because

-1313

the spillover from his acquittal on

certain

of the

workers' compensation

easily be posited to have worked

severance

and

claimed error.

the bankruptcy count and

joinder is

counts could

to his benefit.

stricter

just as

The law of

master than

Edgar's

See Natanel, 938 F.2d at 307-08.


___ _______

The Grand Jury Testimony


________________________

On June

subpoena

1, 1993, Attorney Koditek

before the grand jury.

government nor

Attorney

testified under

Edgar says that neither the

Koditek notified

him that

Koditek

would testify under subpoena.

Edgar

complains that he did not learn of the grand

jury testimony of

indicted.

after he was

Even then, the prosecution denied Edgar's requests

for a copy of

to

his civil-claim lawyer until

trial,

Attorney Koditek's testimony.

the

new

prosecutor

assigned

Ten

to

days prior

the

case

appropriately provided the transcript to the defendant.

This

is what the transcript8 showed:

AUSA:

Do
part

you recall

at some point

of your

Insurance
returns

claim to

Company
to

--

making, as

Commercial Union
submitting

commercial Union

tax

evidencing

Mr. Edgar's income for the years prior to


the accident?
KODITEK:

I may have.

AUSA:

Well, what's your recollection, sir?

KODITEK:

I don't recall.

AUSA:

Mr. Koditek,

if you'd look at Exhibit 22

[the October 12, 1988, demand letter] and

____________________

8.

The

district court

disclose certain

allowed the

government's motion

portions of Attorney

Koditek's grand

to
jury

testimony for purposes of responding to this appeal.

-1414

if

you

could

read

that

carefully

to

yourself.
KODITEK:

(Witness looking at document)

AUSA:

Have

you

looked

at

that

document

carefully, sir?
KODITEK:

Yes, I have.

AUSA:

Does

that

refresh your

recollection at

all

as

to

whether

you

submitted

returns

to

Commercial

Company

as evidence of Mr. Edgar's wage-

Union

tax

Insurance

earning ability?
KODITEK:

It appears that I did.

AUSA:

Do

you recall

any discussions

with Mr.

Edgar concerning those tax returns?


KODITEK:

Any

discussions would be

subject to the

attorney/client privilege.
AUSA:

Well, what I'm asking you is not what, in


fact,

was said,

but I'm

asking whether

the subject of the tax returns ever

came

up.
KODITEK:

I would presume the subject came up.

AUSA:

Did Mr. Edgar

say to you at any time, in

connection with your submission

of those

tax returns to Commercial Union Insurance


Company, that those tax returns were not,
in fact, identical to the ones filed with
the Internal Revenue Service?
KODITEK:

Any

conversation would be subject to the

attorney/client privilege.
AUSA:

Well, I

think

that in

this

instance, sir, they would not.

particular
What I'm

asking you is whether Mr. Edgar indicated


to you, in substance
was

submitting or

or in fact, that he
having you

submit to

the

Commercial

tax

returns

That is
tax

Union Insurance

which

were

not

Company
the same.

to say that they were fraudulent

returns that

were not

submitted to

the Internal Revenue Service.


KODITEK:

No, he never said that to me.

AUSA:

Was it your
tax

understanding, sir, that the

returns that

fact, genuine tax

he submitted

were, in

returns as filed

with

the Internal Revenue Service?


KODITEK:

What

is

That would be my understanding.

clear

is

questioned about the substance

that

Attorney

Koditek

was

of his conversations with his

-1515

client,

that

he asserted

attorney-client

privilege twice,

that the prosecutor responded that the matter was not covered

by

privilege

and that

Koditek

then

answered.

This

was

apparently done without the client, Edgar, being aware of the

testimony.

Nor was there any judicial review of whether the

testimony was indeed privileged.

At trial

Edgar did object on

grounds of attorney-

client privilege to any testimony from Attorney Koditek.

court

rejected

testified that

Commercial

the

privilege

he represented

Union

claim,

that

claim.

Attorney

Edgar in connection

he

wrote

two

The

Koditek

with the

letters

to

Commercial Union in

tax

connection with the claim,

returns were enclosed with one of the letters.

Koditek authenticated the letters,

grounds

of

privilege

the

material (including the

demand

because

company,

the

tax returns

of

of

who

gave him

the

tax returns) to be enclosed with the

The district court ruled that

were

disclosed

to the

insurance

the fact that Edgar gave the returns to Koditek was

Attorney Koditek answered

tax returns from Mr.

examine

Attorney

but declined to answer on

question

letter to the insurer.

not privileged.

the

and that the

Edgar.

Edgar

that he received

chose not to cross-

on this point and never asserted a defense of advice

counsel

authorized.

or

that

the

attorney's

At trial, Attorney Koditek

actions

were

not

did not testify, as

he did to

the grand jury, about whether Edgar

had ever told

-1616

him that the

not

tax returns submitted

been submitted

to the IRS.

to Commercial Union

The government

had

did put on

independent evidence that these returns were never filed with

the IRS.

Edgar

attorney's

tree

grand

filed

testimony.

theory that

jury

was

dismissed

or

precedent

for

indictment

Attorney

evidence

an

motions

He argued

illegal

based

derived from

several

and so

argument

breach of

the

be

that

upon evidence

his

a fruit-of-the-poisonous-

Koditek's

should

regarding

testimony before

indictment

the

should be

suppressed.

There

is

court

quash

an

obtained from

or

directly

may

the attorney-client privilege.

See
___

United States v. Omni International Corp., 634 F. Supp. 1414,


_____________
________________________

1421

(D.

Md. 1986)

(but

doubting

that dismissal

was

an

appropriate remedy under United States v. Morrison, 449 U.S.


______________
________

361 (1981));

People v. Fentress, 425


______
________

N.Y.S.2d 485 (Dutchess

Co. Ct. 1980); Baltes


______

Ct.

1988).

prosecutor

derived

v. Doe I, 57 U.S.L.W. 2268


_____

Some federal

induces

from the

the

courts

breach,

breach is

have

held

suppression

the appropriate

(Fla. Cir.

that if

of

the

evidence

remedy, unless

prejudice would remain,

in which case the

indictment may be

dismissed.

United States v.
______________

Rogers, 751
______

See, e.g.,
_________

1074, 1079 (9th

to

defendant

confidential

Cir. 1985) (no dismissal

could be

neutralized

communications

by

when any prejudice

excluding at

wrongfully

-1717

F.2d

obtained

trial

from

defendant's former

uses

its

supervisory

directly encroaches

jury.

attorney).

power

upon the

But "[w]hen a

to dismiss

limited

States Dist. Ct.,


__________________

(internal citation

F.3d

omitted).

it

the grand

reserved, therefore, for

circumstances."

53

indictment

fundamental role of

That power is appropriately

extremely

an

federal court

Whitehouse
__________

1349,

1359

(1st

v.

United
______

Cir.

1995)

Indeed, the

Supreme Court has

said that prejudice is required to dismiss

an indictment for

prosecutorial

Scotia v.

misconduct.

Bank

of Nova

United

_____________________

States,
______

487

U.S.

250,

263

(1988).

discovery as

to whether the proper

to

Attorney Koditek.

subpoena

government

had failed

to

Edgar

______

also

sought

procedures were followed

And,

he argued

follow the

States v. Zolin, 491 U.S. 554 (1989).


______
_____

that

procedures in

the

United
______

Those motions were all

denied.

Attorney-Client Privilege and Due Process Arguments


___________________________________________________

Edgar

argues on

appeal

that the

questioning

of

Attorney Koditek before the grand jury violated his rights to

due

process and

to

assume, arguendo, that


________

the

the assistance

of

counsel.

Edgar did not waive his

attorney-client privilege

and

that

We

will

rights under

those rights

were

violated

jury.

But

by

Attorney Koditek's

even with

testimony before

those assumptions it

the grand

does not

follow

that the appropriate remedy is to vacate his conviction.

-1818

Contrary to Edgar's

right to

counsel

called to

See,
___

is even

the grand jury

arguments, no Sixth

implicated

here, as

was not criminal

e.g., Rogers, 751 F.2d at 1077-78.


____ ______

troubled

by what

happened

and seek

Amendment

the

lawyer

defense counsel.

Nonetheless, we are

guidance

in case

discussing the district court's adoption of Rule 3:08

Rules of the

law

of the

Supreme Judicial Court of Massachusetts, and in

the teachings of United States v. Zolin, 491 U.S. 554 (1989).


_____________
_____

long

simmering

dispute in

Massachusetts

prosecutors serving grand jury subpoenas on counsel

in

over

resulted

the affirmance by this court, equally divided en banc, of

a district

court opinion that

approved the Local

Rule that

adopted the disciplinary rules of the Supreme Judicial Court,

particularly S.J.C. Rule 3:08, Prosecutorial Function 15 ("PF

15").

See United States v. Klubock,


___ _____________
_______

1987) (en banc

by an equally

832 F.2d 664 (1st Cir.

divided court) ("Klubock II")


___________

(plaintiff prosecutors sought a declaratory

the

Board

of Bar

Overseers that

applied to federal prosecutors),

Mass. 1986).

The

the

judgment against

rule was

invalid as

aff'g 639 F. Supp.


_____

net effect is that federal

prosecutors in

Massachusetts must comply with PF 15, which provides:

It

is

unprofessional

conduct

for

prosecutor to

subpoena an attorney

grand

without

jury

approval
prosecutor

in

prior

circumstances
seeks

attorney/witness

to
to

compel

provide

a
to a

judicial
where

the
the

evidence

concerning a person who is represented by


the attorney/witness.

117 (D.

-1919

S.J.C. Rule 3:08, PF 15.

The

literally

Attorney

of

the

prosecutor here

apply as

Edgar

argues

that PF

was represented
___

in

15 does

not

the past

by

Koditek, but was not represented by him at the time

subpoena,

Nonetheless,

the

as

the

prosecution

language

of

PF

represented to

15

requires.

the

district

court that it had complied with PF 15 and had obtained

prior

judicial approval

Edgar

to

serve the

subpoena.

But,

as

points out, the record is devoid of proof on this point.

The

criminal

subpoena

here

least

not go

to

the

target's

defense counsel and so does not raise the issues of

potential abuse specific to

53 F.3d

did

at 1354.

But

potentially

that situation.

See Whitehouse,
___ __________

Edgar and Attorney

placed

in

the

Koditek were

hypothetical

situation

described in the panel opinion vacated by Klubock II9:


__________

The

serving of

circumstances
chilling

a
will

several

is

the

and

such
a

between

the

his client.

This

natural

underlying

under

immediately drive

wedge

attorney/witness
wedge

subpoena

consequence

factors

this anomalous situation.

created
Most

at

of
by

obvious

is the fact that the client


at
his

best, and

suspicious at

is uncertain
worst, that

legitimate trust in his attorney may

____________________

9.

The

court in

Klubock II produced
___________

for publication

the

vacated panel opinion, United States v. Klubock, 832 F.2d 649


_____________
_______
(1st

Cir. 1987) ("Klubock I"), because the members of the en


_________

banc

court referred to the

F.2d

at

district

665.

The

opinion

panel opinion.
in

Klubock II, 832


__________

Klubock II affirming
___________

the

court did refer to the portions of Klubock I quoted


_________

here, id. at 667,


___

although neither Klubock I nor


_________

Klubock II
__________

is controlling precedent, Whitehouse, 53 F.3d at 1354.


__________

-2020

be subject to betrayal.
subpoenaed
feel

And because the

attorney/witness may

intimidated, this may

place

if

there

ethical

is

subpoenaing

of

an

in fact take

not

control

himself

even

minimal

regulating

the

attorney/witness

to

seek evidence against his client.

More

subtle,

but

perhaps

more

important in terms of the ethical setting


within

which PF

immediate

15

is

conflict of

between

the

client

by the

framed, is

the

interests created

attorney/witness
serving of a

and

his

subpoena in

the context of what is contemplated by PF


15.
has

As

a witness, the

separate

legal

attorney/witness
and

practical

interests apart from those of his client.


These interests may

or may not

coincide

with

those

of the

his client.
a

The mere possibility of such

conflict is

problem.

attorney/witness and

sufficient
minimal

to

create

overview

by

impartial observer, as is provided

an

by PF

15, can go far in preventing the creation


of

these

ethical conflicts

between the

attorney/witness and his client.

United States v.
______________

1987)

Klubock,
_______

(footnote omitted)

832 F.2d

649, 652-53

("Klubock I").
_________

We

(1st Cir.

believe these

considerations apply to the relationships with former counsel

as well as with present counsel.

There

may be

an implicit

called to testify about a

attorney

prosecutor

will

think

become

threat to

the attorney

client to the grand jury that

target

he knowingly

himself10

participated

should

in

the

the

the fraud.

____________________

10.

Indeed, at trial Attorney Koditek indicated an intent to

assert the right under the Fifth Amendment not to incriminate


himself

if called

Koditek's trial

to

testify.

testimony, he

By

the time

had been granted

of

Attorney

immunity by

the prosecution.

-2121

This is

the

particularly so

privilege must

where the prosecution

give way

to the

asserts that

crime-fraud exception.

The lawyer may be

in order

tempted to reveal privileged conversations

to avoid

becoming

a target

himself.11

Ideally,

counsel receiving a subpoena will give notice to a client and

consistently

assert the

privilege

on behalf

of a

client.

Ideally, a prosecutor faced with an assertion of privilege by

an

attorney witness

whether the

ideal

We

world.

are loath

line.

will seek

privilege is valid.

See Jerome
___

to say

But we are

a judicial

But we

determination of

do not live

in an

Frank, If Men Were Angels (1942).


___________________

the prosecutor

equally loath to

here crossed

say, as

over the

the government

urges, that there is no line and there is never a remedy.12

____________________

11.

While an attorney

set forth

in S.J.C. Rule

101(C)(4),
client,

may, under the


3:07, Code of

reveal information

the

doctrine does

"accusation"
prosecutor

of

an

Prof. Resp.,

without prior

not

wrongful

here made

self-defense doctrine

apply

conduct.

notice

unless there
We

do

not

"accusation" against

DR 4to the
is

an

think the

counsel that

would have triggered this provision.

12.

Indeed,

limits

other

to

how

attempting

to

privilege.

courts

far

Omni,
____

Supp. at 1431, 1439.

attorney's
clients).
protecting
applies.
854

(6th Cir.

the

of

district

the

there
may

go

are
in

attorney-client

court

chastised

attorney's secretary.

the

634 F.

See also United States v. Valencia, 541


________ _____________
________
1976)

secretary for
But,

investigators

breach

government for interviewing an

F.2d 618

concluded that

government

induce

In

have

(improper for
information

attorneys are

the client

by

government to

about the

themselves

asserting the

pay

attorney's

responsible for

privilege when

it

See, e.g., United States v. Rasheed, 663 F.2d 843,


_________ _____________
_______

(9th Cir.

1981), cert. denied,


_____________

Omni, 634 F. Supp. at 1422-23, 1431.


____

-2222

454 U.S.

1157 (1982);

The

privilege lay

first

line

of

in the hands of

obligation

not to

3:07, Code

of Prof. Resp., DR

defense

his lawyer.

reveal client

obligation to assert privilege

to

protect

confidences.

4-101.

A lawyer

Edgar's

lawyer has an

S.J.C. Rule

also has an

on behalf of a client.

Id.;
___

see also In re Impounded Case (Law Firm), 879 F.2d 1211, 1213
________ _______________________________

(3d

Cir. 1989).

Generally, an attorney has an obligation to

assert

the

disclose

privilege on

behalf of

confidential information until

determination that

there is

give notice to

duties,

not to

there is a judicial

ABA/BNA Lawyers
_______________

55:1307-08 (1989).

Even if

is an assertion that there is no privilege because the

crime-fraud exception

Resp.,

client and

no privilege.

Manual on Professional Conduct


_______________________________

there

the

DR

applies, the

the client.

7-102(B)(1).

attorney is

S.J.C. Rule 3:07,

If the

he is at risk at least

attorney

required to

Code of Prof.

violates

these

of a malpractice suit and of

professional discipline.

Concomitantly, a prosecutor has certain obligations

beyond

zealous

representation

of the

government

when the

prosecutor interrogates witnesses before the grand jury.

For

example,

if a

witness invokes

the privilege

incrimination, the prosecutor should cease

the particular subject to

questioning as to

which the privilege was addressed.

United States v. Mandujano, 425


______________
_________

see
___

against self-

United States v. Benjamin,


_____________
________

-2323

U.S. 564, 581

852 F.2d 413,

(1976).

But
___

420 (9th Cir.

1988)

(testing

validity

of

reliance

prosecutorial misconduct unless prosecutor

or improperly

commented on assertion

on other grounds,
________________

line

490 U.S.

of defense is that

on

privilege

not

harangued witness

of privilege), vacated
_______

1043 (1989).

Thus, the

the prosecutor will

second

not harangue a

witness, but will promptly bring the issue to a court.

The

third

ultimately be a

issue.13

In

(1989),

the

line

of

defense is

there

disinterested judicial determination of

United
States
_______________

Supreme

Court

v.

set

obtaining judicial review when the

is

that

consistently asserted

and

the

Zolin,
_____

forth

491

the

U.S.

procedure

will

the

554

for

attorney-client privilege

government

opposes

the

privilege.

Id. at 572.
___

review of

the information alleged

discretion

adequate

to be privileged,

at the

of the court, upon a "'showing of a factual basis

to

person' . .

support a

. that

reveal evidence

664 P.2d 26, 33

in this

good

in camera

faith belief

review of

to establish the claim

exception applies."

was made

The government may obtain in camera

by

a reasonable

the materials

may

that the crime-fraud

Id. (quoting Caldwell v. District Court,


___
________
______________

(Colo. 1982)).

case because

Apparently, no

such showing

Attorney Koditek

so quickly

____________________

13.

The judicial protection of rights inherent in PF 15 does

not

resolve this

situation.

authorized issuance of

That

a subpoena to

judge has

ex parte
_________

counsel does not

mean

that

a determination

privilege before

the

has

been made

grand jury

has

that any

assertion of

been decided

in

the

prosecution's favor.

-2424

succumbed to

prosecutor

the prosecutor's

may

not

obtain

questioning.

disclosure,

or

Under

Zolin, a
_____

even

judicial

review, of the privileged information upon a simple assertion

that

the crime-fraud

exception applies, as

happened before

the grand jury here.

See id. at 571.


___ ___

Nevertheless, Edgar

that third line of defense.

no

prejudice,

conviction.

and

ultimately had the

On the facts of this case we see

therefore

See Fed.
___

no

basis

R. Crim. P. 52;

that

privilege.

the

trial

and to

Attorney Koditek.

to what was

avoid the

On the

vacate

the

Edgar does not now

Koditek

The district court instructed

limit his questions

company

testimony by

to

Bank of Nova Scotia,


___________________

487 U.S. at 254-55 (requiring prejudice).

assert

benefit of

invaded

his

the prosecutor to

disclosed to the

insurance

communications between

Edgar and

significant point

as to

whether

Edgar had or had not confided to Koditek that the tax returns

to

be provided to Commercial

Union had not

been filed with

the IRS, Attorney Koditek did not so testify at trial, as

had to the

returns

had

grand jury.

not

Indeed, the

been filed

was

through a Certification of Lack

of federal tax returns.

tax

returns to

evidence that the

introduced

he

tax

independently

of Record from the custodian

On the point that Edgar provided the

Attorney Koditek,

Edgar does

not claim

on

appeal that the trial court erred in holding that information

was not privileged.

-2525

Edgar

argues there

deprived of the choice as

counsel

defense.

was prejudice

in that

to whether to assert an

Edgar chose

not to assert

he was

advice of

that the false

tax returns were prepared and submitted on advice of counsel.

He was free to have made

such an argument, if supported,

trial, whatever Koditek's grand jury testimony.

such an argument, of

that

the

discussions.

476,

course, he would have waived

attorney-client

See
___

486-87 (3d

Had

privilege

Cir.

he made

any claim

protected

Glenmede Trust Co. v. Thompson,


___________________
________

1995); Saint-Gobain/Norton

at

those

56 F.3d

Indus. v.

___________________________

General Elec. Co., 884


___________________

Moreover, there

actions

in

authorized.

was no

F. Supp.

31,

33 (D.

argument or evidence

connection

with

the

demand

Mass. 1995).

that Koditek's

letter

were

not

The choice as to whether to make such arguments

was not foreclosed to him and was a strategy choice

by trial

counsel.

Nor is this a fruit-of-the-poisonous-tree situation

that would

indictment.

require suppression

Cf. Rogers,
___ ______

of evidence or

751 F.2d at 1078-79.

quashing the

Edgar has not

convinced us that he would not have been indicted but for his

attorney's testimony.

government

knew

that

Edgar argues

Attorney

that the only reason the

Koditek

obtained

the

tax

returns

from

testimony.

Further, the

Edgar

was

However,

because of

that

Koditek letter

Koditek's

inference

was

grand

jury

self-evident.

and attached returns

came from

-2626

Commercial

Union's

claim

file

and there

was

independent

evidence identifying the signature on the unfiled tax returns

as

Edgar's.

There

reversible error.

being

no

prejudice,

there

was

no

Fed. R. Crim. P. 52.

Sufficiency of Evidence of Materiality


______________________________________

In

the

his reply
_____

argument

for

brief14

the first

in this

time

that

court Edgar

the

makes

jury was

not

permitted to decide the issue of materiality of his allegedly

false statements, in violation of the principles announced by

the Supreme Court in United States v. Gaudin, 115 S. Ct. 2310


_____________
______

(1995).

Gaudin was decided


______

appeal.

brief

The issue,

to

this

not having been raised in

court, is

Gabriele, 63 F.3d 61,


________

after his trial

waived.

See
___

but before his

his principal

United States
_____________

67 n.9 (1st Cir. 1995);

v.

United States
_____________

v. DeMasi,
______

denied,
______

40 F.3d 1306,

1318 n.12 (1st Cir.

1994), cert.
_____

115 S. Ct. 947 (1995); United States v. Brennan, 994


_____________
_______

F.2d 918, 922

n.7 (1st

Cir. 1993).

Had

Edgar raised

the

Gaudin issue initially on appeal, this court would review the


______

failure to submit

error

materiality to

test because Edgar also

the district

court.

See
___

the jury

under the

failed to raise

Randazzo, __ F.3d
________

plain

the issue in

at __, No.

95-

____________________

14.

Edgar

filed

motion with

this

court

present a claim

under United States v. Gaudin,


______________
______

2310 (1995), in

his reply

"without

brief.

prejudice, however,

The

to the

for

leave to

115 S.

motion was

Ct.

granted,

government's right

to

argue, or the court's right to conclude, that the issue ha[d]


been waived."

-2727

1489,

F.3d

slip op. at 17; see also United States v. Collins, 60


_________ _____________
_______

4, 8

(1st Cir.

1995).

Edgar

argues that

we should

nonetheless review the district court's failure to submit the

element

though

of materiality to the jury for "plain error" just as

the

issue were

raised in

his

initial brief.

See
___

Randazzo,
________

However,

__

we

F.3d

at __,

think a

No.

95-1489,

higher standard

must

slip

op. at

be met,

17.

and as

review for "plain error" lies "within the sound discretion of

the Court of Appeals,"

the

circumstances

we decline to apply that

of this

case.15

Olano, 113 S. Ct. 1770, 1779


_____

Taylor,
______

54

F.3d

unpreserved

at

errors

972

See
___

standard in

United States v.
______________

(1993); Fed. R. Crim. P. 52(b);

("appellate

only

in

the

courts

most

will

notice

egregious

circumstances").

Edgar

did

sufficiency of the

reject.

properly preserve

an objection

to the

evidence on materiality, but that we also

Edgar argues that

the evidence was insufficient

to

establish that his omissions from the forms CA-8 for which he

was convicted were material.

A statement is material

has

influence

natural

affecting

or

tendency

to

influencing

a government

States v. Arcadipane, 41 F.3d 1,


______
__________

or

is

if it

capable

function.

7-8 (1st Cir. 1994).

of

United
______

Edgar

____________________

15.

Even if we were to apply

find
strong

Edgar had
evidence

not met his


of

the plain error test, we would


burden.

guilt, we

do

In light
not

think

of the very
there was

"miscarriage of justice" that would warrant correction of any


error.

United States v. Olano, 113 S. Ct. 1770, 1779 (1993).


_____________
_____

-2828

argues that because

the decision not

to grant him

benefits

had

already been made and because the forms were filed late,

his

failure

material.

to

However,

actual influence,

influence.

set

forth

his

self-employment

the standard is

but whether

not whether

it would

have a

was

not

there was

tendency to

The district director for the OWCP testified that

on a claim for disability, whether one may work or has worked

has

considerable

warranted.

influence

Thus, the

on

the

amount

of

district court did not err

Edgar's false statements to be material.

benefits

in finding

See id. (affirming


___ ___

a finding

of materiality for false

statements of employment

on a Form 1032).

Fair Credit Reporting Act


_________________________

Edgar's last

claim of error

is that there

was an

abuse of discretion in the denial of his motion for discovery

of the government's compliance with the Fair Credit Reporting

Act, 15 U.S.C.

this information

1681-1681t.

in order to

dismiss the indictment or

warranted.

FCRA

by

Even assuming

improperly

finances, Edgar has

information could

Edgar claimed to

have needed

determine whether a

motion to

a motion to suppress

evidence was

that the government

violated the

acquiring

not shown

data

concerning

how any use

have prejudiced him

of the

in the grand

Edgar's

acquired

jury to

support dismissal of the indictment.

Scotia
______

v. United States, 487


______________

See, e.g., Bank of Nova


___ ____ ____________

U.S. 250

(1988).

Nor would

-2929

suppression

be

required

Suppression of the

for

violation

evidence is not a mentioned

of

the

FCRA.

remedy under

the FCRA, nor is discovery of whether the government complied

with

the Act.

See 15 U.S.C.
___

Kington,
_______

801 F.2d

suppress

records

733,

737 (5th

obtained

Financial Privacy Act

1681n; cf. United States


___ _____________

in

United States
______________

1986) (refusing

violation of

v. Payner,
______

447

U.S.

admissible may not be

ground that

seized unlawfully from

United States
______________

obtained

in

suppressed).

v. Caceres,
_______

violation

of

There was thus

denial of the motion.

Right

481 U.S. 1014 (1987);

(evidence otherwise

it was

the

to

to

when Congress did not provide for that

remedy in statute), cert. denied,


____________

also
____

Cir.

v.

440

IRS

U.S.

727,

735 (1980)

suppressed on the

a third

741 (1979)

regulation

no abuse of

cf.
___

need

party);

(evidence

not

be

discretion in the

Affirmed.
_________

-3030