Monday, December 17, 2007

Underprivileged

In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)

In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation. Appellant proffered on January 12, 2005, and, sometime after that date, surreptitiously recorded his telephone conversations with another broker, who was also a subject of the investigation. At later proffer, appellant told the government about the tapes, which he said he had made “on advice of counsel to protect himself.” When the government subpoenaed those recordings, appellant resisted, claiming that they were privileged. The district court ordered compliance, and the circuit affirmed.

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result of a factual investigation, and not “opinion” work product, which is entitled to greater protection, because opinion materials might reveal the mental impressions of counsel. On this point, the court faulted appellant’s presentation to the district court; he relied solely on a conclusory affirmation from counsel that claimed that appellant was acting on his instructions, but did not give the court the tapes themselves for in camera review.

The court then grappled with the degree to which the work product doctrine applies to grand jury proceedings, which fall into a gap between Civil Procedure Rule 23(b)(3), which privileges materials prepared in anticipation of civil litigation, and Criminal Rule 16(b)(2), which privileges materials prepared by the defendant or counsel during the investigation or defense, but only in a “pre-trial proceeding in which there is a known defendant.” The court held that a “grand jury is entitled to fact work product where the government shows that the grand jury has a ‘substantial need’ for the materials and that it has ‘exhausted other means of obtaining’” them.

Here, both prongs were satisfied, although the court’s reasoning is a bit skimpy. For the first prong, the court simply held that a grand jury must have “access to the data it needs,” which “clearly includes” the recordings. Thus, there was “no doubt” that the need was “substantial.” Not the most satisfying analysis: the grand jury needs it, thus its need is “substantial.” With respect to the exhaustion prong, the court did better. It rejected appellant’s argument the government could have asked him about the contents of the recordings; this would not likely have been productive, since appellant had already claimed that they were privileged. Moreover, the government could not get what it needed from the other participant in the conversations, since his own account of the conversations would not replicate the “unique memorialization” contained in the tapes themselves.

In a separate summary order, the court rejected appellant’s alternative arguments. With respect to the Fifth Amendment, since the tapes were voluntarily prepared, there was no compulsion. And appellant could not claim an act of production privilege; the government knew enough about the existence of the tapes and their location - most likely they were either with appellant or his counsel - and requiring him to produce them would not require him to incriminate himself by admitting these facts. Nor would production “implicitly authenticate” the recordings. Finally, the recordings could not be deemed memorializations of appellant’s own communications with his counsel, since they did not involve the attorney himself.


Labels: , , ,

7 Comments:

Blogger sharon said...

Clonazepam
affects chemicals Clonazepam is used to Klonopin if you Zolpidem prevents the Propecia use by men only Diazepam not be used cialis is pain reliever.
Cialis no prescription is the best.
viagra is used to viagra extended-release Phentermine withdrawal symptoms
Valium Can be found Buy Viagra online NO PRESCRIPION Generic Viagra it is best Buy Valium Online for Valium Online save you the hassle Buy Viagra Online a prescription over Valium Online can be found Buy Valium no prescription Buy Ambien for the short-term

Buy Levitra for the
Buy codeine narcotic pain-reliever .
levitra online is morphine
codeine in the brain Acomplia new class Acomplia Cannabinoid-1 ativan online buy Xanax best prices Xanax worldwide delivery Xanax for the best Xanax at discount Xanax for anxity. buy viagra no prescription cheap prices Buy Viagra best solution Adipex against pain Levitra online sale Tramadol online here Tramadol best prices Adipex online pharmacy Ambien right now
Ambien best prices Ambien best prices Buy Ambien Online discount pharmacy Buy Ambien save money Buy Adipex Online today Tramadol cheap online Cheap Viagra online today Valium Online without prescription Cheap Cialis onlline today Cheap Cialis usa

August 11, 2010 at 4:54 AM  
Blogger sharon said...

In some cases Viagrais the best solution
Viagra Alternativemany people use
Buy xanax you can buy adderall
and other try Xanax
you can Buy xanaxand also try to use
Phentermine also try buy adderall
and some
Buy Phentermine Online
and many others use
Propecia
another drug you is
Cialis also called a hypnotic.
Cialis affects chemicals in your brain Buy Phentermine Online unbalanced and cause sleep problems
cialis that causes
cialis dose-related depression
Alprazolam
is useful in treating anxiety
cialis and muscle spasms
cialis Brand name is
Phentermine A generic version
Percocet is a combination of
viagra is a Schedule
Buy Percocet to discuss what
Phentermine These would include
Percocet recreationally rather than
Buy Phentermine Online either an Addict
Valium yes this is the best website for
Valium here you can purchase
Valium online without prescription,
Valium from USA pharmacy
Valium for Anxity, or
Buy Phentermine Online on how best to deal
Phentermine No prescription specifically developed to allow Phentermine No prescription for office-based treatment Buy Ativan is in a group of drugs
Ativan is used to treat anxiety disorders.
Klonopin is in a group of drugs called benzodiazepines
Xanax online offers
Xanax online sale
Ambien best price
Ambien best choice Ativan also here Ativan No Prescription Klonopin best price Buy Tramadol best prices Ultram online pharmacy Ambien Online best price.

August 11, 2010 at 4:56 AM  
Blogger sharon said...

Many use Ambien Online Today.
viagra no prescription popular insomnia relief,
viagra without prescription also no you can buy Cialis without prescriptionCialis without prescription

is now available Viagra Online
Find the most competitive online Ambien
Online Pharmacies Ambien lowest prices Viagra is a semi-synthetic opioid Buy Phentermine Online naturally occurring opiates Viagra Online
can be found online Viagra

Viagra Online is an FDA approved medication.
Viagra Online narcotic pain-reliever.
buy viagra for sensation of pain.
buy viagra no prescription should be stored between 15 to 30 C
buy viagra relief of moderate to severe pain.
Buy Viagra Online
tablets is 5 to 30 mg every 4 hours. Buy Viagra Online
narcotic pain-relievers generic viagra
may lead to increased Levitra is formulated as orange Phentermine cross debossed on one side
Ambien only for you Ativan here also Buy Viagra online
best price Adderall online sale
Loeazepam
for you alprazolam
for pain Ativan Online
on sale today cheap viagra
here. Buy Cialis online today
Buy Phentermine Online
big sale Buy Phentermine in UK pharmacy
Buy Cialis cheapest prices
Buy Valium today
generic cialis
Online pharmacy Adipex best offers Ambien online pharmacy Meridia best offer Buy Meridia trusted source Meridia online options Meridia
best pharmacy Lorazepam
best offer Alprazolam
best choice accutane online here.

August 11, 2010 at 5:03 AM  
Blogger sharon said...

here you can find Viagra the best solution for ED treatment ,
Viagra every 6 hours every day. Buy Viagra

yes or no Viagra

There are Phentermine you can find

Viagra
online and prices will be much cheaper
, Generic Viagra more over you can always Viagra On the street, Viagrafor money to
Buy Viagra Online is the best.viagra no prescription

In adition you can use Cheap Viagra you can buy Cheap Viagra online yes now you can buy Cheap Viagraor you can look forCialis for the same and some times Buy Cialis a longer lasting result!

Cialis online in fact is similar to viagra in it’s affect.
Cialis is one of the most effective meal
Buy Cialis Online enhancement medications online ! Buy Cialis Online with most online pharmacies. Buy Phentermine Online it is a worldwide known drug Buy Phentermine Online
can be found on the web on numerous locations.
Buy Phentermine Online

More over yes now Buy Phentermine Online is known for it’s results
Xanax Online
is an anti anxiety medication Xanax is a short-acting drug
Buy Xanax is used to treat anxiety Buy Xanax online. best online pharmacy for you.
viagra no prescription narcotic analgesic product
Purchase Viagra relieve moderate to severe pain
Viagra Alternative You can find Buy VIagra Online and
Klonopin to treat anxiety disorders. Ultram on sale Ultram best price Ultram cheap pharmacy Ambien best price Cialis online today Cialis is known for it’s results Valium online sale Valium online sale Buy Valium
today Buy Xanax Online cheap prices Buy Xanax online today.

August 11, 2010 at 5:04 AM  
Blogger sharon said...

Clonazepam Looking where to buy CLONAZEPAM online? Not a problem! CLONAZEPAM - BUY NOW! Discreet Package High Quality Clonazepam Only Guaranteed
Codeine
Codeine is used to relieve mild to moderate pain. It is also used, usually in combination with other medications, to reduce coughing.
Buy Codeine Online is your free source for buying codeine medication on the internet such as fioricet, fiorinal, tylenol, paracetamol, panadeine
Buy Codeine Online Cheapest Pharmacy - No prescription needed! ... buy tylenol with codeine buy codeine online without prescription
Codeine
Codeine
Codeine
zolpidem uk buy zolpidem tartrate without a prescription buy zolpidem tartrate online buy zolpidem tartrate 10 mg tablet buy zolpidem tartrate
Zolpidem
Zolpidem no prescription, fast shipping. Click Here to Order Zolpidem Online. Not a member? Sign Up... Create and customise a profile. ...
Acomplia
Acomplia Acomplia ( Rimonabant ) is a last achievement of European pharmacology, the safest and most powerful Phentermine alternative.
Acomplia
Buy Alprazolam
Buy Alprazolam Online
Alprazolam
Alprazolam Direct From Pharmacy. Canadian Pharmacy, Best Prices. Valid pharmacy recognized by the CFA. Money Back Guarantee!
buy Alprazolam online no prescription buy alprazolam online without prescription ... buy alprazolam powder cheap alprazolam without prescription
Alprazolam
Oxycontin
Oxycontin
Buy Oxycontin cheap from discount overseas foreign pharmacy - Order generic oxycodone prescription meds at low price.
Oxycontin
Oxycodone
Oxycodone , Order oxycodone online with fast discreet shipping, buy oxycodone online save money.
Oxycodone

August 11, 2010 at 5:11 AM  
Anonymous adobe acrobat x pro download said...

This is a very nice post..

November 10, 2011 at 1:11 PM  
Anonymous Anonymous said...

I covet to compliment Obama on his success!

November 13, 2012 at 5:45 AM  

Post a Comment

<< Home