In re: Grand Jury Subpoena

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:13-mc-00107-MOC-DCK-1 Copies to all parties and the district court/agency. [999780341].. [15-4080]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4080

In Re:

GRAND JURY SUBPOENA

--------------------------UNDER SEAL 1; UNDER SEAL 2,
Intervenors - Appellants,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-mc-00107-MOC-DCK-1)

Argued:

October 27, 2015

Decided:

March 23, 2016

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Keenan and Judge Diaz joined.

ARGUED: Jeffrey Bryan Wall, SULLIVAN & CROMWELL LLP, Washington,
D.C., for Intervenors-Appellants.
Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Respondent-Appellee.
ON BRIEF: Steven R. Peikin, Beth D.
Newton, SULLIVAN & CROMWELL LLP, New York, New York; Jack M.
Knight, Jr., Phoebe N. Coddington, WINSTON & STRAWN LLP,
Charlotte, North Carolina; Michael S. Schachter, Alexander L.

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Cheney, Nicholas W. Chiuchiolo, WILLKIE FARR & GALLAGHER LLP,
New York, New York; Brian S. Cromwell, Sarah F. Hutchins, PARKER
POE ADAMS & BERSTEIN LLP, Charlotte, North Carolina, for
Intervenors-Appellants.
Jill Westmoreland Rose, Acting United
States
Attorney,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Asheville, North Carolina, for Respondent-Appellee.

Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
In this white-collar criminal matter, a federal grand jury
has been investigating whether commodities traders engaged in
misconduct.
that

the

At the heart of this appeal is whether evidence
grand

jury

sought

and

that

otherwise

might

be

privileged is nonetheless discoverable because the crime-fraud
exception to the attorney-client privilege applies.
Grand jury investigations are confidential, and we are thus
barred from including here much detail.

But just because we may

not write about particulars does not mean that we either lack
them or have failed to consider them.

On the contrary, we have

reviewed this matter thoroughly and conclude that the district
court did not clearly abuse its discretion in holding that the
government successfully made a prima facie showing that evidence
that might otherwise have been shielded from discovery enjoys no
such protection due to the crime-fraud exception.

Accordingly,

we affirm.
I.
Two

traders

investigation
futures

potential

are

(“Traders”)

trades

regulatory

who

body

for

worked

large

inquired

front-running,

the

subject
for

a

investors.
into

various

i.e.,

3

misusing

of
bank
In

a

grand

jury

executing

block

2010,

trades,

a

private

investigating

material

information

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about impending trades for personal gain.

See United States v.

Mahaffy, 693 F.3d 113, 120 (2d Cir. 2012).
In November 2010, the regulator sought to interview the
Traders and others in connection with the suspicious activity.
The

bank

that

employed

the

Traders

engaged

an

attorney

(“Lawyer”) to represent the Traders and the bank vis-à-vis the
regulator.

Lawyer met the Traders individually and collectively

and then participated in the interviews.
In December 2010, Lawyer followed up with the regulator by
written

submission.

Traders’

feedback

The
was

written

sought,

asserted

defenses of the suspect trades.
example,

that

proprietary

the

orders

Traders
in

submission,

legal

which

and

the

factual

The submission asserted, for

“flatly

advance

for

of

and

denied
with

having

entered

knowledge

of

any

customer block order” and noted that “each trader gave clear,
consistent and undeniable explanations of why such trading was
not even feasible.”
At

a

later

point

in

time,

the

government

investigating the Traders’ suspicious trading activity.

began
And in

July 2013, a federal grand jury looking into whether any crimes
had

been

committed

issued

a

subpoena

to

Lawyer,

seeking

documents relating to Lawyer’s representation of the Traders,
especially
December

regarding
2010

written

the

November

submission

4

2010
to

the

interviews
regulator.

and

the
While

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others,

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the

bank,

privilege,

client

including

the

two

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waived

Traders

any
did

applicable
not.

They

attorneytherefore

intervened and sought, along with Lawyer, to quash the grand
jury’s subpoena.
A magistrate judge denied the motions to quash.

But the

district court remanded the matter to the magistrate for an in
camera

review.

Upon

denied the motions.
court agreed.
the

review,

the

magistrate

judge

yet

again

And the second time around, the district

The district court held, among other things, that

crime-fraud

exception

applied

here,

where

the

Traders’

communications with Lawyer were made “precisely to further the
Traders’

criminal

scheme”

of

misusing

impending trades for personal gain.

information

about

The Traders appealed to

this Court.
II.
As an initial matter, we briefly address our subject matter
jurisdiction over this appeal.
order

enforcing

a

discovery

Generally, “a district court’s
request

is

not

a

‘final

order’

subject to appellate review.”

Church of Scientology v. United

States,

(1992).

506

U.S.

9,

18

n.11

In

Perlman

v.

United

States, however, the Supreme Court made clear that courts may
review immediately a discovery order directing a third party to
produce

exhibits

that

were

claims immunity or privilege.

the

property

of

an

appellant

247 U.S. 7, 12-13 (1918).

5

who

And in

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United States v. Jones, this Court, relying on Perlman, held
that an order denying the motion of clients, who were targets of
a grand jury investigation, to quash grand jury subpoenas issued
to their attorneys, was immediately appealable.
1071 (4th Cir. 1982).
jurisdiction

to

696 F.2d 1069,

Based on Perlman and Jones, we have

review

the

ruling

regarding

the

grand

jury

subpoena at issue here.
III.
On

appeal,

the

Traders

challenge

the

district

court’s

determination that the crime-fraud exception to the attorneyclient privilege applied and that the privilege thus provided no
basis for shielding the subpoenaed documents and testimony from
the grand jury. 1

Our review is a deferential one:

A district

court’s determination that the government made a prima facie
showing that the crime-fraud exception applies “should be upheld
‘absent a clear showing of abuse of discretion.’”

In re Grand

Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247, 254
(4th Cir. 2005) (quoting In re Grand Jury Subpoena, 884 F.2d
124, 127 (4th Cir. 1989)).

1

The work-product privilege is not an issue on appeal.
therefore do not address it.

6

We

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A.
The

attorney-client

privilege

protects

confidential

communications between clients and their counsel.

“Its purpose

is to encourage full and frank communication . . . and thereby
promote broader public interests in the observance of law and
administration of justice.

The privilege recognizes that sound

legal advice or advocacy serves public ends and that such advice
or advocacy depends upon the lawyer’s being fully informed by
the client.”

Upjohn Co. v. United States, 449 U.S. 383, 389

(1981).
However, the privilege’s justifications “cease as the line
is crossed from legal advice given on how one may conform one’s
actions to the requirements of the law . . . into the domain of
contemplated or actual illegal prospective or on-going action.”
Edna Selan Epstein, The Attorney-Client Privilege and the WorkProduct Doctrine Vol. 1, at 675 (5th ed. 2007).

Accordingly,

the attorney-client privilege is “lost . . . when a client gives
information to the attorneys for the purpose of committing or
furthering a crime or fraud.”

In re Grand Jury Proceedings, 102

F.3d 748, 750-51 (4th Cir. 1996).
To

overcome

the

attorney-client

privilege

and

“secure

[sought] evidence,” Union Camp Corp. v. Lewis, 385 F.2d 143, 145
(4th Cir. 1967), the government must convince the court: (1)
that

“the

client

was

engaged

in

7

or

planning

a

criminal

or

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fraudulent scheme when he sought the advice of counsel,” and (2)
that the attorney’s assistance was obtained in furtherance of
the crime or fraud or was closely related to it.

In re Grand

Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d at 251.
The government need not “prove the crime or fraud” at the grand
jury stage, nor is the government required to make its showing
even by a preponderance of the evidence.
and citation omitted).
be

made—i.e.,

“the

Id. (quotation marks

Instead, only a prima facie showing must

proof

‘must

be

such

as

to

subject

the

opposing party to the risk of non-persuasion if the evidence as
to the disputed fact is left unrebutted.’”

Id. (quoting Duplan

Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1220 (4th Cir.
1976)).
Our recitation of the burden, especially our use of the
word “rebut,” (incorrectly) suggests “that the party asserting
the

privilege

may

respond

with

evidence

to

vitiating party’s evidence is not persuasive.”

explain

why

the

In re Grand Jury

Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33
F.3d 342, 352 (4th Cir. 1994).
closed and secret.

But grand jury proceedings are

Fed. R. Crim. P. 6.

And we have long held

that not only facts supporting the crime-fraud exception, but
even the nature of the alleged crime or fraud itself, may be
presented ex parte and held in confidence.

In re Grand Jury

Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33

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F.3d at 352-53 (citing In re Grand Jury Subpoena, 884 F.2d 124).
The party asserting privilege may thus be forced to make a best
guess as to the crime and evidence it must counter.
The

second

crime-fraud

prong,

whether

Id.

the

attorney’s

assistance was obtained in furtherance of the crime or fraud,
“may be satisfied with a showing of a close relationship between
the attorney-client communications and the possible criminal or
fraudulent

activity.”

In

re

Grand

Jury

Empanelled Jan. 28, 2004, 401 F.3d at 251.

Proceedings

#5

Further, “it is the

client’s knowledge and intentions that are of paramount concern”
in

our

analysis;

illegality.

the

attorney

need

not

be

aware

of

any

Id.

Notably,

communications

“made

with

the

intention

of

covering up the crime/fraud” can qualify under the second crimefraud

prong

and

“will

not

be

privileged.”

Epstein,

The

Attorney-Client Privilege and the Work-Product Doctrine Vol. 1,
at 684.

In such cases, “the concealment or cover-up of its

criminal or fraudulent activities by the client, the holder of
the privilege . . . controls the court’s analysis of whether the
attorney-client privilege may be successfully invoked.”

In re

Grand Jury Proceedings, 102 F.3d at 751.
In In re Grand Jury Proceedings, for example, “a question
arose as to whether two lawyers, . . . at the request of the
Bank,

and

acting

innocently,

gave

9

somewhat

false

information

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which

might

activity.”

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serve
Id.

to

at

cover

750.

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up
The

the

Bank’s

grand

jury

attorneys’ documents and testimony.
“the

concealment

or

cover-up

of

Id.
its

crime
thus

or

fraud

sought

the

This Court noted that
criminal

or

fraudulent

activities by the client, the holder of the privilege” controls
the

crime-fraud

analysis.

Id.

at

751.

And

the

Court

was

“satisfied” that the district court’s finding of a prima facie
case was adequately supported where “the attorneys, unknowingly,
furthered the Bank’s alleged fraud by referencing in various
documents,” including in submissions to government regulators,
fraudulent information.
Ultimately,

“the

Id. at 751-52. 2
determination

of

whether

applies [is] reserved for the trial judge.”
Subpoena, 884 F.2d at 127.
pronged

crime-fraud

reviewing

its

a

privilege

In re Grand Jury

The trial judge engages in the two-

analysis

determination,

in
we

the
are

first

instance.

mindful

of

the

And

in

Supreme

Court’s warning that “[a]ny holding that would saddle a grand
jury [proceeding] with minitrials and preliminary showings would
assuredly impede its investigation and frustrate the public’s

2

This Circuit is not alone in holding that communications
aimed at concealing a criminal or fraudulent scheme obliterate
the privilege.
See, e.g., In re John Doe Corp., 675 F.2d 482
(2d Cir. 1982) (holding that internal investigation intended to
persuade third parties that no irregularity had occurred was
part of cover-up and thus upended any privilege).

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interest in fair and expeditious administration of the criminal
laws.”

United States v. Dionisio, 410 U.S. 1, 17 (1973).

Not

least for this reason, we uphold such determinations “absent a
clear

showing

of

abuse

of

discretion.”

In

re

Grand

Jury

Subpoena, 884 F.2d at 127.
B.
With

this

framework

in

mind,

we

have

reviewed

the

particulars of this case and determined that the district court
did

not

clearly

err

in

determining

that

the

government

successfully made a prima facie showing that the Traders engaged
in a criminal or fraudulent scheme of misusing information about
impending

trades

for

personal

gain.

The

district

court’s

determination that the Traders intended to avoid detection and
continue their scheme in communicating with Lawyer, not least by
having Lawyer misrepresent their activities to the regulator, is
likewise supported by the record.
The Traders repeatedly argue that nothing “in the record”
supports the district court’s determination here.
Br. at 43.

Appellants’

The Traders claim, for example, that “the Government

lacks evidence” to support the crime-fraud exception and thus
attempts to “fall[] back on the communications themselves” to
make the necessary showing.

Id. at 47.

But the Traders, who

were, by definition, excluded from the grand jury proceedings
and thus not privy to what evidence or theories the complete

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record

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contains,

see

Fed.

R.

Pg: 12 of 12

Crim.

P.

6,

are

tilting

at

windmills.
We, by contrast, have the full record, and we have reviewed
it thoroughly.

And on that basis, we conclude that the Traders

have failed to make “a clear showing of abuse of discretion.”
In

re

Grand

court’s

Jury

Subpoena,

determination

that

884

F.2d

the

at

127.

government

The

made

district

a

showing

sufficient to support the crime-fraud exception must therefore
be upheld.

See id.

And because the exception annihilated any

privilege inhering in the Traders’ communications with Lawyer,
we

need

court’s
grand

not

address

ruling

jury’s

that

the
some

subpoena

Traders’
of

were

the
not

challenge
documents

privileged

to

the

district

responsive
because

to

they

the
were

intended to be disclosed to third parties.
IV.
For

the

reasons

discussed

above,

the

district

court’s

ruling is
AFFIRMED.

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