United States of America v. Kwiatkowski

Filing

REDACTED OPINION, reverse the order of the district court, by PNL, RSP, PWH, FILED.[2103874] [16-4136]

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16-4136-cr
United States v. Krug, et al.
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2016

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(Argued: May 11, 2017

Decided: August 18, 2017)

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Docket No. 16-4136-cr

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____________________

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UNITED STATES OF AMERICA,

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Appellant,

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v.

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RAYMOND KRUG and JOSEPH WENDEL,

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Defendants-Appellees. 1

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____________________

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Before: LEVAL, POOLER, and HALL, Circuit Judges.

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Appeal from the December 10, 2016 order of the United States District

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Court for the Western District of New York (Skretny, J.) precluding the

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government from introducing at trial certain testimony by a co-defendant turned
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The Clerk of Court is respectfully directed to amend the caption as above.

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government witness on the basis of the common-interest rule of attorney-client

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privilege. The excluded statements were not made to, in the presence of, or

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within the hearing of an attorney for any of the common-interest parties; nor did

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the excluded statements seek the advice of, or communicate advice previously

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given by, an attorney for any of the common-interest parties; nor were the

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excluded statements made for the purpose of communicating with such an

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attorney. While expressing no view as to whether all such circumstances would

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invoke the privilege, we find nothing in the circumstances here to support the

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application of the privilege, and accordingly reverse the district court’s order of

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exclusion.
Reversed.
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JOSEPH J. KARASZEWSKI, Assistant United States
Attorney, for James P. Kennedy, Jr., Acting United
States Attorney for the Western District of New York,
Buffalo, NY, for Appellant.

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TERRENCE M. CONNORS, Connors LLP, Buffalo, NY,
for Defendant-Appellee Raymond Krug.

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RODNEY O. PERSONIUS, Personius Melber LLP,
Buffalo, NY, for Defendant-Appellee Joseph Wendel.

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POOLER, Circuit Judge:
Appeal from the December 10, 2016 order of the United States District

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Court for the Western District of New York (Skretny, J.) precluding the

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government from introducing at trial certain testimony by a co-defendant turned

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government witness on the basis of the common-interest rule of attorney-client

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privilege. The excluded statements were not made to, in the presence of, or

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within the hearing of an attorney for any of the common-interest parties; nor did

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the excluded statements seek the advice of, or communicate advice previously

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given by, an attorney for any of the common-interest parties; nor were the

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excluded statements made for the purpose of communicating with such an

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attorney. While expressing no view as to whether all such circumstances would

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invoke the privilege, we find nothing in the circumstances here to support the

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application of the privilege, and accordingly reverse the district court’s order of

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exclusion.

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BACKGROUND
Defendants-Appellees Raymond Krug and Joseph Wendel and Defendant

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Gregory Kwiatkowski were officers in the Buffalo Police Department. On or

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about May 31, 2009, the three officers allegedly used excessive force during the
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course of arresting four individuals. As relevant here, Krug and Wendel

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allegedly used excessive force by shooting an arrestee with a BB gun they

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recovered from the crime scene.
By indictment dated May 27, 2014, Krug and Wendel were each charged

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with one count of depriving an individual of his constitutional rights while

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acting under color of law, in violation of 18 U.S.C. § 242, and one count of

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conspiring to injure, oppress, threaten, or intimidate individuals to deprive them

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of their constitutional rights, in violation of 18 U.S.C. § 241. Kwiatkowski was

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similarly charged with three counts of depriving an individual of his

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constitutional rights while acting under color of law, in violation of 18 U.S.C. §

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242, and one count of conspiring to injure, oppress, threaten, or intimidate

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individuals to deprive them of their constitutional rights, in violation of 18 U.S.C.

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§ 241.

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After the indictment, the three officers entered into a Joint Defense

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Agreement (“JDA”). Under the JDA, the officers’ defense counsel participated in

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meetings together, transmitted emails, and shared legal memoranda and

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research.

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The district court accordingly precluded the government

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from introducing Kwiatkowski’s testimony about the hallway discussion at trial.
The government timely appealed the district court’s order.

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DISCUSSION

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I.

Standard of Review
Although “[w]e have repeatedly held that this Court reviews rulings on

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claims of attorney-client privilege for abuse of discretion[,]” there are “occasions

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where the attorney-client privilege raises a question of law, which we review de

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novo.” United States v. Mejia, 655 F.3d 126, 131 (2d Cir. 2011) (internal quotation

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marks omitted). “[T]o determine the appropriate standard of review, we must
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establish whether the district court based its decision on a consideration of the

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application of the privilege to the communication or on an understanding of the

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privilege’s scope.” Id. We review the former for abuse of discretion and the latter

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de novo. Id.
Here, we are, as the district court was, asked to determine a question of

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law regarding the breadth (or scope) of the attorney-client privilege in a common

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interest setting. Accordingly, we review the district court’s decision de novo.

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II.

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The Attorney-Client Privilege
The underlying purpose of the attorney-client privilege is “to encourage

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full and frank communication between attorneys and their clients.” Upjohn Co. v.

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United States, 449 U.S. 383, 389 (1981). As a result, the attorney-client privilege

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creates a rule of confidentiality that “recognizes that sound legal advice or

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advocacy serves public ends and that such advice or advocacy depends upon the

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lawyer’s being fully informed by the client.” Id.; see also United States v.

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Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) (explaining that the privilege

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“recognizes that a lawyer’s assistance can only be safely and readily availed of

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when free from the consequences or the apprehension of disclosure” (internal

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quotation marks omitted)). To that end, “[t]he attorney-client privilege protects
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communications (1) between a client and his or her attorney (2) that are intended

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to be, and in fact were, kept confidential (3) for the purpose of obtaining or

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providing legal advice.” Mejia, 655 F.3d at 132.

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“In order to balance this protection of confidentiality with the competing

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value of public disclosure, however, courts apply the privilege only where

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necessary to achieve its purpose and construe the privilege narrowly because it

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renders relevant information undiscoverable.” Id. (internal quotation marks and

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brackets omitted); see Fisher v. United States, 425 U.S. 391, 403 (1976) (explaining

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the attorney-client privilege “protects only those disclosures necessary to obtain

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informed legal advice which might not have been made absent the privilege.”

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(emphasis added)). “The part[ies] asserting the privilege, in this case [Krug and

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Wendel], bear[] the burden of establishing its essential elements.” Mejia, 655 F.3d

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at 132.

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“The joint defense privilege, more properly identified as the

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common[-]interest rule,” is “an extension of the attorney[-]client privilege.”

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Schwimmer, 892 F.2d at 243 (internal quotation marks omitted). “It serves to

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protect the confidentiality of communications passing from one party to the

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attorney for another party where a joint defense effort or strategy has been
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decided upon and undertaken by the parties and their respective counsel.” Id.

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The common-interest rule protects “[o]nly those communications made in the

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course of an ongoing common enterprise and intended to further the enterprise.”

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Id. As with all attorney-client privilege claims, a claim of privilege under the

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common-interest rule “requires a showing that the communication in question

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was given in confidence and that the client reasonably understood it to be so

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given.” Id. at 244.

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Although the common-interest rule “somewhat relaxes the requirement of
confidentiality by defining a widened circle of persons to whom clients may

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disclose privileged communications,” Restatement (Third) of the Law Governing

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Lawyers § 76 cmt. c (2000) (internal citation omitted), “a communication directly

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among the clients is not privileged unless made for the purpose of

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communicating with a privileged person,” Id. § 76 cmt. d, i.e., the lawyer, “agents

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of” the client or of the lawyer “who facilitate communications between” the

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client and the lawyer, and “agents of the lawyer who facilitate the

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representation.” Id. § 70. In this vein, we have stated that it is not “necessary for

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the attorney representing the communicating party to be present when the

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communication is made to the other party’s attorney” under a common-interest
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agreement. Schwimmer, 892 F.2d at 244. Ultimately, “[w]hat is vital to the

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privilege is that the communication be made in confidence for the purpose of

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obtaining legal advice from the lawyer.” United States v. Kovel, 296 F.2d 918, 922 (2d

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Cir. 1961) (Friendly, J.).

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The communications at issue in this case did not serve the interests that

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justify the privilege. The communications occurred outside the presence of any

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lawyer. Notwithstanding that the lawyers for the defendants were nearby and

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had recently been in communication with their clients, the excluded statements

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were not made for the purpose of obtaining legal advice from a lawyer, nor did

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the excluded statements share among defendants advice given by a lawyer, nor

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did the excluded statements seek to facilitate a communication with a lawyer.

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Here, the hallway discussion consisted of one member of the JDA (Wendel)

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conveying his independent, non-legal research to another member of the JDA

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(Krug) while noting he had sent the same research to his attorney. No legal

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advice was mentioned, much less shared or otherwise conveyed, among the co-

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defendants. The mere fact that the communications were among co-defendants

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who had joined in a joint defense agreement is, without more, insufficient to

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bring such statements within the attorney-client privilege. We know of no
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precedent applying the attorney-client privilege on such facts and we find no

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circumstances present here that could justify extending the attorney-client

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privilege to these communications.

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CONCLUSION
For the reasons discussed above, we reverse the order of the district court.

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The government may offer the proffered testimony by Kwiatkowski regarding

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the hallway discussion at the trial of Krug and Wendel.

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