The opinion of the court was delivered by: DUFFY
The government has moved for rehearing of this Court's decision (dated December 22, 1974) denying the government's motion for an order directing Richard G. Rosenbaum, an attorney, to testify before a federal grand jury concerning a phone conversation he had with Martin Lucio on March 13, 1974, regarding Lucio's testimony earlier that day at the criminal trial of Moses Young, Rosenbaum's client. Following that conversation, defense counsel had asked the district court to strike Lucio's testimony (which had been ofered as part of the defense case). Counsel stated that he had reason to believe that Lucio's testimony was not entirely truthful and may have been entirely untruthful. The trial court struck the testimony, and the trial proceeded. Young was acquitted of the crime of assaulting a federal officer. The grand jury is now investigating whether Lucio committed perjury at the trial.
In its motion for reargument, the government claims that any "work product" privilege which might prevent Rosenbaum from testifying as to conversations he had with third persons in the course of preparing and conducting Young's defense is at best a qualified privilege, citing e.g., United States v. Brown, 478 F.2d 1038, 1041 (7th Cir. 1973). It maintains that it has "good cause" or sufficient need for the testimony to overcome any qualified privilege that may apply. Rosenbaum's testimony as to admissions made to him by Lucio would be evidence admissible against Lucio in a trial for perjury. Similarly, such admissions might be admissible against Young as admissions of a co-conspirator, if Young were charged with suborning perjury. In response, Rosenbaum argues that the government has not established good cause, because the government has not alleged that it has made any effort to get the testimony of Moses Young or Young's girlfriend.
In addition, Rosenbaum claims that the privilege, as it relates to testimony concerning his conversation with Lucio, is absolute, rather than qualified, citing In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973).
I believe that Rosenbaum, despite the additional showing made by the government, cannot be compelled to testify concerning the substance of his telephone conversation with Lucio. There is no question but that Rosenbaum made this call in the course of conducting Young's defense during trial. Moreover, although the government indicates that Lucio is the target of the grand jury's investigation, any admissions made by Lucio to Rosenbaum would most probably incriminate Young in the circumstances of this case.
Furthermore, the information sought relates only to a possible past crime, the effects of which were minimized, because following his call to Lucio, Rosenbaum successfully moved to have Lucio's testimony stricken from the record in Young's criminal trial on the ground that part or all of it may have been untruthful. In such circumstances, I believe that the work-product privilege, which in the criminal context reflects both fifth and sixth amendment concerns,
prevents the grand jury from compelling Rosenbaum to testify, in effect against his former client, concerning the conversation with Lucio, despite the government's allegation of good cause. See In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973).
The motion for rehearing is granted and the original decision will be adhered to.