just exactly whose privilege has been violated. In fact, neither in their legal memorandum nor during oral argument on these motions did the defendants explain their attorney-client privilege theory. The defendants appear to be asserting a blanket privilege over the entirety of exhibit 1.
The defendants attempt to suppress the entirety of exhibit 1 on privilege grounds, however, is unnecessarily broad. Throughout this proceeding, the government's position has been that it only intends to offer exhibits 1A and 1B into its affirmative case at trial. ln fact, the government filed an affidavit confirming its intent not to offer any of the evidence from exhibit 1 as part of its affirmative case at trial. (government affidavit, July 15, 1991, para. 3). As discussed herein, even if the government sought to introduce into evidence all of exhibit 1, the defendants' privilege argument fails. In any event, this Court treats the defendants' privilege argument as relating to exhibits 1A and 1B. Although an attorney may assert the privilege on a client's behalf, See Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 960 (3d Cir. 1984) (and citation therein), due to the defendants' unexplainable silence on this issue, this Court must assume that with respect to exhibits 1A and 1B either Gleave is asserting the privilege or that Knoll is asserting it for him.
Recently the Second Circuit observed:
The attorney-client privilege generally forbids an attorney from disclosing confidential communications that pass in the course of professional employment from client to lawyer. . . . The relationship of attorney and client, a communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed, all must be established in order for the privilege to attach.
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) (citations omitted).
The person asserting the privilege has the burden of showing its existence. Id., at 244.
In this case, the defendants have not even made an attempt to make any of these showings with respect to any of the materials taken from Knoll's office. Instead, the defendants simply assert a blanket claim of privilege. Therefore, their claim of privilege must fail for that reason alone.
However, there exist separate reasons why the defendants' claim of privilege must fail.
First, exhibits 1A and 1B are not communications by one of Knoll's clients relating to the subject matter upon which professional advice is sought. Government exhibits 1A and 1B are each requests from Knoll and Gleave as "Principals" of Atlantis International Ltd. to a Cayman Islands bank to wire transfer monies held in the account of Atlantis International Ltd. They are simply nothing more than requests for a bank transaction in the course of the defendants' business.
Along these lines, there are related reasons why the privilege does not apply to exhibits 1A and 1B. First, the privilege does not apply to communications involving business transactions of the attorney and his client. United States v. Rosenstein, 474 F.2d 705, 714 (2d Cir. 1973). As noted above, exhibits 1A and 1B emanate from the business dealings of Knoll and his "client" Gleave. The communications stemming from that transaction are not confidential communications passing from client to lawyer in the course of the lawyer's professional employment; or a communication by the client relating to the subject matter upon which professional advice is sought.
Finally, this Court finds that even if exhibits 1A and 1B were covered by the privilege, the crime fraud exception vitiates the privilege in this case. Communications made in furtherance of an ongoing crime are not protected by the attorney-client privilege. In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32, (2d Cir. 1986). In this case, to overcome the privilege, the government need not show that the crime had actually been committed, but only that probable cause exists that exhibits 1A and 1B were made in furtherance of a crime. ln Re John Doe Corp., 675 F.2d 482, 491 (2d Cir. 1982). This Court agrees with the government that it has shown probable cause in this case by virtue of the indictment which charges that exhibits 1A and 1B are acts in connection with a criminal conspiracy to commit crimes also contained in the indictment.
Therefore, because this Court concludes that the defendants have failed to demonstrate the existence of the privilege, this Court must deny the defendants' motions to suppress exhibits 1A and 1B (or exhibit 1) on the grounds of attorney-client privilege.
For the reasons set forth above, this Court denies the defendants' motions to suppress evidence.
This Court denies all the above motions for the reasons articulated.
Dated: January 28, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge