that any statements allegedly made by him to Crogan-Mazur were subject to the attorney-client privilege, and therefore can not be used as the basis of the charges against him.
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 from disclosure by Crogan-Mazur.
3. Defendant's Sixth Amendment Right to Assistance of Counsel
The defendant argues that the entire indictment should be dismissed because the government's use of the defendant's conversations with his counsel constitute a violation to his Sixth Amendment right to the assistance of counsel. This argument lacks merit.
The Sixth Amendment right to assistance of counsel does not attach until "judicial proceedings" of some nature have been initiated against the defendant. Brewer v. Williams, 430 U.S. 387 at 399, 97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424 (1977). Defendant's motion papers do not even argue that "judicial proceedings" had been initiated at the time of the two conversations between the defendant and Crogan-Mazur. Instead, the defendant's argument focuses on cases in which the government in some way interfered with the defendant's relationship with the attorney representing him in a criminal proceeding. In the instant case, Crogan-Mazur represented the defendant in otherwise unrelated civil proceedings prior to the initiation of any criminal judicial proceedings. Thus, dismissal of the indictment or suppression of the evidence based upon defendant's Sixth Amendment claim is unwarranted.
4. Defendant's First Amendment Rights
The defendant also claims that "where the words themselves constitute the crime, the crime cannot be committed when the words are spoken to one's attorney within the attorney/client relationship." (See Defendant's April 4, 1996 Memorandum with respect to the First Amendment Claim at p. 1.) However, the defendant cites no authority whatsoever for the proposition that the attorney-client context of the conversation implicates the First Amendment and precludes prosecution.
The cases cited by the defendant
discuss the distinction between "political hyperbole" (which is protected by the First Amendment) and actual "threats" (which are not protected). In the primary case cited by defendant, Watts v. United States, 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399, S. Ct. 1399 (1969), the defendant's statements were made in the context of a political discussion about the draft (at a time when the Vietnam War was on-going). According to an investigator for the Army Counter Intelligence Corps, the defendant in Watts stated: "They always holler at us to get an education. And now I have already received by draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Watts, 89 S. Ct. at 1401. In that case, the Supreme Court reversed a jury verdict convicting the defendant holding that "taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted [as a threat]." Watts, 89 S. Ct. at 1402.
The Supreme Court's determination in Watts amounts to a determination that given the facts and circumstances presented to the jury, a rational jury could not find that the defendant's statement constituted a threat as prescribed by the statute. In the instant matter, and particularly without the benefit of a more exacting scrutiny of the circumstances surrounding the statements (and indeed, with respect to Count I, the actual language used) which comes to light in the trial process, this Court is not persuaded that no rational jury could interpret the alleged statements to be "threats" as a matter of law. It is well-settled that absent unusual facts, the "existence vel non of a 'true threat' is a question generally best left to a jury." United States v. Malik, 16 F.3d 45, 51 (2d Cir. 1994) citing United States v. Carrier, 672 F.2d 300, 306 (2d Cir.) cert. denied 457 U.S. 1139, 73 L. Ed. 2d 1359, 102 S. Ct. 2972 (1982).
The only "unusual" circumstance articulated by defendant is the fact that the alleged statements in the instant case were made during a conversation with the defendant's counsel. Defendant's argument that because of the privileged nature of attorney-client communications, defendant's utterance of the alleged statements "is the same as thinking the thought to one's self." (See Defendant's April 4, 1996 Memorandum with respect to the First Amendment Claim at p. 2). Of course, if this were true there would be no exceptions to the attorney-client privilege (i.e. statements unrelated to the legal advice sought; statements in furtherance of a crime). Whether the statements in this case are privileged because they were uttered in the context of an attorney-client conversation does not necessarily mean that the statements constituted "political hyperbole" rather than "threats." Thus, dismissal of the indictment or suppression of evidence on First Amendment grounds is not warranted.
5. Grand Jury Abuse
Defendant contends that by playing the audiotape of the November 10, 1995 conversation between the defendant and Crogan-Mazur to the Grand Jury, the entire process was tainted. Defendant's argument is based upon an assumption that the tapes were obtained "in violation of the Fifth Amendment, Sixth Amendment and ethical obligations of both the private attorney and the government."
Even if the Court were to assume that the tapes were to be considered improper evidence, dismissal of the indictment on grounds of Grand Jury abuse would be unwarranted. The Grand Jury is an investigative body, and thus, it is not bound by the formal rules of evidence. United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). As stated in In re Sealed Case, 278 U.S. App. D.C. 188, 877 F.2d 976 (D.C. Cir. 1989):
Although a grand jury may not itself violate a valid privilege, it may consider evidence obtained in violation of the Fourth Amendment, or the Fifth Amendment, or that would otherwise be incompetent at trial.