The opinion of the court was delivered by: SCOTT
Currently before the Court is defendant's motion to dismiss the indictment, or in the alternative, to suppress certain evidence.
On November 29, 1995, the Grand Jury issued an indictment charging the defendant with two counts of making threats to kill a United States Judge or federal law enforcement officers (in this case the alleged threat involved employees of the U.S. Immigration and Naturalization Service ["INS"]) in violation of 18 USC § 115(a)(1)(B).
Count I is based upon statements allegedly made by defendant in a November 2, 1995 conversation with Bonnie Crogan-Mazur, an attorney representing him in certain immigration proceedings. Testifying before the Grand Jury, Crogan-Mazur stated
that she previously sent a letter asking him to telephone her to discuss those proceedings. According to Crogan-Mazur, the defendant called her on November 2, 1995. During that conversation, Crogan-Mazur testified that she and the defendant discussed various topics, including her Native-American ancestry and the treatment of Native-Americans. With respect to the immigration proceedings, Crogan-Mazur testified that the defendant "was upset" because of delays in the immigration proceedings. She testified that the defendant blamed INS for causing problems for him for 13 years of his life and that because of INS delays, he was not able to leave the country to go back to Pakistan to see his dying father. According to Crogan-Mazur, the defendant stated that he wanted an opportunity to tell the Immigration Judge about the heartache that all this delay had caused him. When she informed him that his ability to speak to the Immigration Judge may be limited, the defendant allegedly referred to Oklahoma City and Waco [Texas] and stated: "No one listens to anything unless there is violence." According to Crogan-Mazur, the defendant then went on to explain that change only occurs in America in response to "something like Oklahoma City." When she asked if he intended to "do something" at the immigration hearing, the defendant allegedly responded that "killing one or two people ... is a meaningless gesture [that's all that would be present at the hearing]." Crogan-Mazur testified that the defendant then stated: "I have a focused plan that is going to cause change. ... Killing 50 to 100 people ... now that is a statement that people will have to be alerted to." (See. Bill of Particulars pp. 1-3) Crogan-Mazur testified that they went on to discuss that killing for a good cause is not considered a bad thing in some cultures.
After this conversation, Crogan-Mazur--who had never met the defendant in person, but had spoken to him by phone on a number of occasions--approached Immigration Judge Michael Rocco and INS trial Attorney John Reed and informed them of the statements the defendant allegedly made during their November 2, 1995 conversation. The FBI was then called in and informed of the alleged conversation. At the direction of the FBI, Crogan-Mazur then agreed to write the defendant another letter asking him to contact her by phone regarding the immigration proceedings. Still acting as the defendant's attorney in the civil immigration proceedings, Crogan-Mazur further agreed to tape the subsequent phone conversation with the defendant (without his knowledge) and to direct her conversation with the defendant back to the violence topic. (See Government's Response to Defendant's Pretrial Motions, p.7).
On or about November 10, 1995
, the defendant telephoned Crogan-Mazur as directed by her letter. Count II of the indictment is based upon statements allegedly made by defendant in that conversation with Crogan-Mazur. As noted in the Court's March 12, 1996 Decision & Order/Report & Recommendation, the audiotape of the conversation (the transcript was not yet available) submitted to the Court was well over two-hours long. Because the Court could only speculate as to the portions of the conversation the Government intended to assert as constituting a threat, the Court directed the Government to issue a Bill of Particulars setting forth the portions of the November 10, 1995 conversation which constituted the threats upon which Count II of the Indictment are based. Out of the two-hour-plus conversation, the Government identified the following statements as the basis of Count II:
I'm on the last limit. I may lose control. They [INS] cause me pain- I should cause them pain.
Whatever they [INS] do they get back.
They [INS] should face the consequences then - then I'm the judge, I'm the prosecutor, I'm a man in my land doing certain things I please. (See Bill of Particulars at p. 3)
Several of the issues raised by the defendant are novel, complex and intertwined. The defendant argues that it was prosecutorial misconduct for the government to utilize Crogan-Mazur, and the attorney-client relationship that existed between her and the defendant, to obtain evidence upon which to base charges against the defendant. Upon these same facts, as separate grounds, the defendant also asks the Court to dismiss the indictment based upon an exercise of the Court's supervisory authority or because of violation of the Disciplinary Rules set forth in the Code of Professional Responsibility.
The parties have not cited, and the Court has not found, a similar case in which the government enlisted an attorney representing an individual in on-going civil proceedings to actively use the attorney-client relationship to investigate and obtain evidence against that individual for use in a criminal prosecution.
1. Crogan-Mazur's Conduct is Attributable to the Government
Because Crogan-Mazur is not typically a law enforcement officer, it is necessary to determine if her conduct, which is the subject of the defendant's challenges in this case, may be attributed to the government. It is important to distinguish between Crogan-Mazur's conduct in connection with Counts I and II of the indictment. With respect to Count I, Crogan-Mazur is merely a witness for the prosecution. According to her Grand Jury testimony, the statements which she interpreted as constituting "threats" were allegedly uttered to her by defendant during the November 2, 1995 conversation. After that conversation, Crogan-Mazur relayed the substance of the defendant's alleged statements to the INS and the FBI. With respect to the allegations upon which Count I are based, the government did little more than receive information from a potential witness that an alleged crime had been committed.
After that, with respect to the allegations asserted in Count II, Crogan-Mazur became the "alter ego", or an agent, of the government; agreeing to utilize her attorney-client relationship with the defendant to initiate contact with the defendant, steer their conversation to the topic of violence, and tape the conversation to preserve it for use by the government in a criminal prosecution. By utilizing Crogan-Mazur as an "agent" in the investigation of possible criminal activity by the defendant, her conduct is attributable to the government. The government does not seriously dispute that Crogan-Mazur's conduct may be attributable to the government for the purposes of the issues raised by the defendant in this motion. See also United States v. Hammad, 858 F.2d 834 (2d Cir. 1988).
2. The Attorney-Client Privilege5
In general, the attorney-client privilege is fundamental to the judicial process and, indeed, has been called "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. V. United States, 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981) citing 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). The critical purpose of the privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and the administration of justice. Id. Because the attorney-client privilege, like all other evidentiary privileges, impinges on the production of relevant evidence, and thus functions as an obstacle to the fact-finder in the pursuit of truth, the Supreme Court has held that such privileges should not be expansively construed. United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974).
However, not all communications with a lawyer are privileged. The attorney-client privilege attaches: (1) where legal advice of any kind is sought, (2) from a professional legal advisor, (3) the communications relate to that purpose, (4) made in confidence, (5) by the client, (6) are at [the client's] instance permanently protected, (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir. 1984) citing United States v. Bein, 728 F.2d 107, 112 (2d Cir. 1984) quoting United States v. Kovel, 296 F.2d 918, 921 (2d cir. 1961). A person's subjective belief that the conversation was privileged is not by itself sufficient to establish the privilege. United States v. Keplinger, 776 F.2d 678, 700 (7th Cir. 1985) cert. denied, 476 U.S. 1183, 106 S. Ct. 2919, 91 L. Ed. 2d 548 (1986). Finally, the burden of establishing the existence of the privilege rests upon the proponent of the privilege. In re Grand Jury Subpoena dated January 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984).
Nevertheless, the attorney-client privilege serves a critical function in the operation of the law and may not be disregarded lightly. Upjohn, 449 U.S. at 389; Allen v. West Point-Pepperell Inc., 848 F. Supp. 423 (S.D.N.Y. 1994).
Although the government concedes that the conversations upon which the underlying charges are based took place within the context of an attorney-client relationship, the government argues that the statements are not related to the legal advice sought and are in furtherance of a crime, and therefore, are not protected by the attorney-client privilege.
A proper analysis of the whether the statements are protected by the attorney-client privilege must start with an examination of the language used and an application of the factors as set forth in In re Grand Jury Subpoena Duces Tecum, supra. The defendant's original motion papers, perhaps because the government had not yet specified the portions of the conversations which it contended to constitute the threats, made no attempt whatsoever to provide any such analysis. Similarly, however, the papers filed in support of the instant motion--which were filed after the government's Bill of Particulars specified the relevant language--also fail to provide any analysis to establish that the statements are subject to the privilege. Instead, the defendant merely concludes that because an attorney-client relationship existed between Crogan-Mazur and the defendant, the communications are protected.
Upon its own review of the statements at issue and the context of the conversations between Crogan-Mazur and the defendant (as best as can be discerned at this stage of the proceedings), this Court concludes that the alleged statements are not related to the legal advice sought by defendant from Crogan-Mazur--that is, advice in connection with the immigration proceedings concerning defendant's alien status and/or his ability to leave the country to visit his dying father. The statements allegedly made by defendant relate to the use of violence to affect political change or to exact personal revenge. Defendant has not provided any argument that such topics were legitimately relevant or material to the issues involving the defendant's immigration status.
Moreover, the alleged statements by defendant may be excluded from protection by the attorney-client privilege as statements made in furtherance of a crime. In this case, the statements are the alleged crime. The "crime-fraud exception" has been applied to reject protection by the attorney-client privilege in analogous (though not similar) cases. See United States v. Sutton, 732 F.2d 1483, 1491(10th Cir. 1984)(privilege not applicable to client's statements to attorney that he intended to destroy records sought by the government); In re Doe, 551 F.2d 899 (2d Cir. 1977)(plan to bribe juror not protected); United States v. Gordon-Nikkar, 518 F.2d 972, 975 (5th Cir. 1975)(plans to commit perjury not protected); United States v. Keys, 67 F.3d 801, 807 (9th Cir. 1995)(announced plans to engage in future criminal conduct not protected). Particularly instructive is Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) wherein the Supreme Court held that a defendant's statements to his attorney that he planned to bribe or threaten a witness would not be subject to the attorney-client privilege. In Nix, the defendant's attorney threatened to withdraw as counsel if the defendant went through with his plans to commit perjury or to bribe or threaten witnesses or jurors. In denying the defendant's subsequent claim that his counsel's threat to withdraw as counsel and expose the plan denied him effective assistance of counsel, the Supreme Court stated:
A defendant who informed his counsel that he was arranging to bribe or threaten witnesses or members of the jury would have no "right" to insist on counsel's assistance or silence. Counsel would not be limited to advising against that conduct. An attorney's duty of confidentiality, which totally covers the client's admission of guilt, does not extend to a client's announced plans to engage in future criminal conduct. Nix, 106 S. Ct. at 998.
Based on the above, the defendant has not established that the attorney-client privilege protects the alleged statements ...