again morning your honor may please the court my name is joseph care chefs i represent the appellate united states of america on this appeal the district court in this case erred in broadly and in precisely extending the attorney client privilege to the communication that mr wendel made to his co defendants in this case and in this case he made the statement solely to his co defendants and there is nothing in this right side the presence of counsel outside the presence of counsel jurors stress that counsel is right on the other side of the door that's correct your honor and in saying that counsel was right on the other side of the door  the judge acknowledged the district court acknowledged that the presence of counsel was important to this determination as to whether or not this statement was protected by the attorney client privilege however the judge created the fiction that this the presence on the other side of the door just the geographical proximity somehow made him effectively present that extends the attorney client privilege beyond the principles that underlie it and it extends it in derogation of the principle that it should be narrowly construed to in  in reference to its purposes here of course the law is clear that the purpose of the attorney client privilege is to promote the free flow of information between a client and their client's attorney and under these circumstances where you have multiple defendants to to promote the free flow of information for the purpose of obtaining legal advice to other individuals to the turn to co defendants and their attorney says well under these circumstances where the record only shows that these defendants were standing in the hall talking about their defense admittedly talking about their defense but there is  nothing in the record that would support the conclusion that they were seeking that either mr winter was seeking legal advice or even that he had received legal advice from his attorney and he was conveying it to the other defendants  d there is something in the record there is something in the record that suggests that he was seeking legal advice although not seeking it in that conversation because he testified that testified if i recall correctly that he had sent the video with this that prompted this idea that one could testify in this fashion he said he had sent it to his lawyer write it yes your honor and that i'm thing in the record that i want to but it doesn't it doesn't establish that he was seeking legal advice by the conversation in which he said these things to the codefendant that's correct your honor and that's an important distinction and i would say it was in testimony  that comes into the record that was the statement or that's the proffer of what lieutenant quick koski would testify to about that conversation so lieutenant quick koski who is the prospective government witness in this case now did say that when he was this when he was party to or when he heard overheard this conversation between wendell in crude wendell said i said to my i've sent it to my attorney and then and there that's as far as it went that there was no disclosure of whatever if anything the other guy and his attorney talked about that's correct your honor and just as a matter of the record in this case too there's no indication that counsel that his counsel ever received it because nor is there indication that he had a conversation with his counsel about the only thing is that  testify that what he heard included the words i sent it to my attorney i discussed it with my attorney precisely and it ended there so in this case the district court completely omitted in its analysis of whether or not the attorney client privilege should apply in this case completely omitted the vital requirement that the communication that is sought to be protected by the attorney client privilege have had been made for the purpose of seeking legal advice for they were talking about well they were talking about their defense your honor i think i think if we took you back the legal defense that they could  the jury well i think i would disagree with that your honor they were talking about what facts might support a defense to the charges in this case a specific piece of evidence that the government intended to prove or intended to introduce at trial namely that another officer at the scene had heard the gun discharged what they were discussing and what mr wendel was discussing was jeez i saw this video on you tube and you can make it sound if you're taking the c o two cartridge out so that's not a legal issue there and certainly as judge of alibi information or has has acknowledged that yes the conversation that they were having that group was having with wendell when wendall was having with group concerned a defense strategy but it did not it was not made for the purpose of seeking legal advice from their attorney was not made to an attorney for the purpose of seeking legal advice and it had nothing to do with any advice that mr wendel may have gotten from his attorneys as is the value pointed out at the conclusion of this hallway discussion one of them said i'm going to send it to my attorney actually see things actually he said here already sent it to his attorney he said i sent this video to rot which is a reference is not cloak this conversation with the protections of the attorney find you would be making the same or game and i take it you would be making the same argument if they had gone on to say if window had added to that we really need to talk with our attorneys about this and see whether it provides an airtight defense see whether they advise us to testify in this fashion or not etc the even if they indicated between them and intention to discuss it with their attorneys it still this conversation between them was not a conversation made with an attorney seeking legal advice nor was it a conversation about legal advice received from an attorney it's absolutely correct and that it would that is our position with regard to this so because the district court in this case missed this critical element and did not analyze this critical element of the attorney client privilege the decision in order of the district court should be reversed thank you counsel you reserved th may please the court my name is terrence connors i appear on the half of office approved my colleague has offered two reasons to reverse the district court i'll respond to both of those reasons speak briefly about some new case law that's been decided even this court case four months ago in which judge pooler and judge hole took place and then my colleague will talk a little bit out of their case as well the first reason he offers is that the lawyer was not physically present he wasn't standing right next to the individuals well there are two answers to that within earshot well the record says just steps away th accurate statement is that he was inside and we were inside a conference room he was outside a conference room just outside the court yesterday judge didn't didn't suggest that the lawyer on the conversation was being addressed  and it was closed and i don't think so because we were participating in that conversation that clearly was a conversation and this is important between members of a joint defense agreement who had been operating under that agreement for two plus years for common interests uncontested they withdrew that argument down below because it's no question that there's a common legal interest involved here so the corporal up who withdrew what originally they said they challenge the existence of a joint defense agreement but let's take that let's explore that you've got the lawyers are out whatever they're doing the three defendants get together and say here's what we can say something right so why don't we just saying that that's what happened here well that's how it has been that that seems to me pretty much like planning to cook the evidence which i would suggest verges on a felony if it's not one billy testify about that on the exception of a crime exception that issue was aired in its entirety before the district court judge and then dropped for this appeal because they could not establish the crime for exception because the statement was we're talking about our defense i saw a video i did some research i said to my attorney it could explain it is as you suggested an alternative defense which your honor we as lawyers are bound to pursue and examined to see if it has some merit and officer quiet ask you what was your impression of what they were talking about as you participated in it my sense was that they were trying to fashion a view of the facts which didn't comport with what really happened and that they were trying to cover up well you've introduced another evidentiary hurdle there but i would say to that that it's still an effort to talk about matters that are protected by a joint defense agreement by a common common interest privilege you're saying that so let's say the facts were as f as i mean how close the lawyers were is really completely irrelevant they could have been a thousand miles away but if they were on the telephone lines of the conversation was going to them it's with them and if they were only six feet away with their in another room and they're not hearing it and it's not addressed to them they're not part of the conversation but if the conversations let's say the conversation had i'll tell you why i would say that there's no suggestion in it of a fraudulent effort to concoct a defense but one of them says to the others i have my recollection just about the same time i had the gun and i cocked it and fired or i removed the cartridge or whatever it was at the video shop and and and that would have made a noise and that could explain why this other witness says he heard what he thought was the firing of a b b gun at this time m m so what do you think about that and they discuss it then i say this is a we need to talk to our lawyers about this testify consistently with one another and just to adopt a common defense out there that that and have the intention to talk to their lawyers about it in the future that makes anything that they say within the attorney client privilege you've taken that example to the two tips or conclusion no i haven't taken it to insert but i would say it let me answer you how is it how is it not what we have in this case you have two you have two people who are who are in a joint defense agreement they are they are planning a consistent defense to do a charges leveled against both of them and i say this is what i'm going to testify to do we need to talk to our lawyers about all this we're planning to do that why is that why is that protected when they are not talking to their lawyers about it why is what would you mean you're saying that virtually any conversation between on this it comes with an exception between two co defendants who are planning a joint defense is within the attorney client privilege if they have some intention which they always would have to talk to her lawyers about if they're going to go ahead with that and saying what the case law that exist on this topic says that if that particular conversation you're on it would be otherwise privilege in other words if they had that precise conversation with their lawyer would that be privileged and if it was stated to a codefendant in a common interest arrangement protected by the judge defense agreement that it would be protected if it pertains to their defense oh and you give me a an opinion of our core the supreme court to start with any court that would bind us that says what you said because that's a pretty amazing proposition that you come out with you say anything that would be privileged if you sent it to your lawyer is privileged although you don't say it to your lawyer so long as you say it to a codefendant with whom you have an understanding that you want to deal with this united like you tell you what the fourth circuit said your honor in one thousand nine other words you're telling me the answer to my question is there's nothing that binds us either us or the government were able to find that a nappy and he said so now tell me what the fourth circuit first of all it applies to both civil and criminal litigation the rationale for a joint defense rule remains unchanged persons who share a common interest in litigation that's the key is there a common interest in a common defense not an economic interest a legal interest with and with each other to more effectively prosecutor defend their claims they should be able to communicate with their respective attorneys and with each other and i've given you four cases that minutely district court cases they all say the same think that that type of a privilege in any of the you know the us are kind of loose words this is a kind of loose words because you say should able to communicate with their attorneys and with each other that arguably envisages a conversation in which at least a lawyer is present and the several defendants are present it doesn't explicitly say that anything the defendant say to one another will be treated as if it was said to the lawyer it's not anything your honor and but what i was going to ask you is do you have any any cases in which the apart from those loose words that are used in describing the principal where as in this case you don't have any lawyer present you don't have any advice received by a lawyer you don't have any advice sought from  you have is a conversation between the two defendants which i doubt and lee if they decide to go ahead with it they will discuss with their lawyers in this regard information if information that is otherwise privilege  shared between parties that have a common legal interest my point the privilege is not forfeited even though no attorney either creates or receives the communication and the reason i make the so i think he was taking privileged information would seem to me that one guy says look my lawyer sent this this and this and i've got these legal rights and that's communicated among them outside the presence of the attorney no i would agree with you if that's what the issue were here but personas mr persone as i've done some research i thought about our defense there's an explanation here there's an alternative explanation to that sound and that represents the c o two cartridge being removed that and i didn't mean to pose a privilege communication now that privilege communication number of cases that we provided you say that that can be repeated to another member of the joint defense agreement that can be repeated you  yes we do officer one daily sharing that information this could be our defense yes yes that conversation with an attorney but think about all the joint defense agreements that exist now the common interest  in which it was created it scares doctors and lawyers and engineers and developers all who know more about this stuff cause that to me is a totally different thing having tried lots of workers well i have also and the privilege of self extends in almost the exact same direction and the same contour as your other you talk to each other out and i'll stay with a criminal context though you know please do i will you have to defend in one who knows a lot about securities for example in a criminal context he talks to defend him to  says listen i think we have a defense here i think that we can be exonerated i have an expert opinion and shares it with the family until that certainly is privileged because it's covered by parties who are bound by mutual common interest shares the advice he received from his lawyer with a codefendant saying i'm saying he is smart enough to know as a securities person that i have a defense here he's the defendant who says this says it to his co efendant that information is privileged assuming that they have signed a joint offense to exactly exactly n not only that but i would do farmer a lawyer which i don't expect to be probably anytime soon but if i had a joint defense agreement i would be saying to my client we have a joint defense agreement we're going to proceed on this carefully do not talk to your codefendant about any of this stuff you talk to me and if we want to share that with them it's pretty good advice except for the fact that there are a number of cases nothing that binds this court but a number of cases that talk about the ability to share information the reason behind the joint defense privilege is to affect the flow of communication to enhance the type of legal advice i can give to my client that purpose is served when the joint defend dance the parties themselves share information ultimately for the purpose of obtaining legal advice well they share with their lawyer eventually they do but before they do that your honor it's a still a privilege communication it's still a privilege you could not force someone to say that you couldn't force defending a who has this expert opinion or to turn that over to the government just because he shared it with established would not be allowed to testify to to work was in this conversation didn't involve lawyers in it in any way or did probably involve an intention to discuss it with their more years of future  don't go that far you want to what i say is we can ask it cannot be permitted to testify as to matters that pertain to the defense you know from the f b i three o two in this case they said specifically officer w said i'm talking about our defense i sent this video that i did some research on i don't say that any communication among these different you go back to afford these we don't have anything that binds or cord we have some cords including just records of said things that you say that you see in companies these do you have any case where the facts would support apart from the apart from the characterization given by the judge in making a decision do you have any case by any court in which the facts involved two or more defendants discussing a joint defense not in the presence and gucci and and millennium health cases that both refer to that but but the scheffler case that was decided by this court in two thousand and fifteen talks a little bit about that and it says essentially that while the privilege is generally waived by voluntary disclosure of the communication to another party and i agree with that the privilege is not waived by disclosure of communications to a party that is the community if there was a privilege communication being a communication with a lawyer do you waive that by telling your codefendant this is the conversation i had with my order so that's really is not the circumstances we it's not precisely the circumstances but it's instructive in the sense that it says such disclosures you name privilege where a joint defense effort or a strategy has been decided upon and undertaken by the parties and multiple clients share a common interest about a legal matter and they justify that sharing of information by saying that there is a paramount importance to have a free flow of information among the lawyers among the defendants to have no swimmer i know well i read it many times eight zero six f third thirty four and we also know that this court both judge pooler and judge hole decided barrett just four months ago and there was a case that reasonably similar fact pattern where mid trial an individual tr turn on his co defendants and then reveal information that was part of the tactics the strategy and the defense the tactics the strategy in the fence and the court said you can't do that so we can't do it and discuss with a lawyer yup that's all tied to the law tried working with your lawyer but it doesn't say that in the opinion i don't know are you conclude that it's what's important no your honor is that this discussion here indisputable a between  wendell and the other members of the joint defense agreement indisputably is about a defense it's in the f b i three o two we are talking about an alternative defense that's we're talking about you cannot deny that it's it's a protected communication and now sharing it with another codefendant in a the exact same posture in a common defense common enterprise defense it is prohibited and it's probably different reasons that three minutes case is cited in the government's reply brief and specifically your honor it's cited in the the government replied page six it is not cited shared with co defendants kreuk inquired koski was privileged information it's at least my understanding that privileged information not only includes it vice provided by an attorney it also includes a communication made for the purpose of up taining legal advice and the government agrees with that in its reply brief at page four the government cites the edelman ag l m a n case and indicates the defendants bear the burden to establish all elements of the privilege ree guys are standing around right outside that conference room they can't even hear what's going on in this room except for the fact that it's beamed out there right ok and what legal advice are they trying to obtain from other no the legal advice was the for the purposes of obtaining legal advice that was what legal advice were they trying to obtain from each other within the context of that discussion  it's it's my view that what's important here is the conversation that mr wendel was referring to the communication that he was referring to in other words that he had forwarded the video to his  sending it back with an instruction he can testify to everything except the one sentence where in which he has the other person's and i took this video and i sent it to my attorney because the substance of what's being discussed is information that mr wendel had communicated we don't know if it was discussed with other we know it was communicated to the lawyer we know also importantly from the record that it was for the purpose of obtaining legal advice because in district judge greg nice decision and this issue and i'm referring specifically to the appendix and i think this is the sealed appendix we have to appendixes this is the that wendell told the group he had already passed the information at issue and to his attorney presumably for the purpose of seeking legal advice so the district judge has found that it was for the such as the edelman decision that the government cites at page four of its reply and also the schaffel or case that mr connor's spoke about which is also cited is a vindicated in the government's brief at six what the government says in its reply brief there i don't see how this conversation we're talking about was for any purpose and it was relating a fact about what one had done one of them managed your client had done to send you think there's no question it was a confidential communication my wrist my best response to that i think your honor is to refer to the recent decision of this court in barrett where the court indicates with with judge poor's opinion  it was decided february fifteenth of this year the site is eight forty eight third five twenty four and in the if i may please in the barrett decision what judge poor wrote was if i may and this is it page five thirty three we agree that a codefendant who turns government witness during trial may be permitted to testify at that time trial provided that the district court takes steps to avoid unfair prejudice first the district court must ensure that the testimony of the former codefendant admitted only for the limited purpose of testifying to events other than the witnesses involvement in joint defense planning this protects the remaining co defendants from any prejudice that would arise from the former co defendants awareness of defense strategy pretrial conversations with co defendants occurring after arrest or number three privileged conversations with counsel so what we have here your honor if you accept what i've represented to you is the best interpretation of these circumstances is that you even if you take three of the the items the judge or in barrett said this must not happen and that is he would be testifying about his awareness of defense strategy he would be testifying about pretrial conversations with co defendants occurring after arrest and i would argue could be testifying about the privileged conversations with counsel and you're saying judge we take that out you still have the other two concerns that would exist so that would be my reason no that i co as indicating that if a party to a joint defense agreement has a capital communication with a lawyer and later conveys that kind of an initial communication to other parties in the absence of counsel that is still protected by the joint defense privilege that i think i would disagree with you i'm not sure anybody would disagree with you and i think that's what barrett was saying in part when we were told it's exactly what we have here that that's the question agrees with or not it doesn't it's not this case of it the reason it is judge is because what mr window was conveying was that he had sent the video to judge britney judge dredd me found in his opinion having a conversation about how they might testify that he wasn't reporting in any way anything that he had told his lawyer about his intentions or that the much less of the lawyer had told him  the nature but i've always been told don't say i respectfully disagree so i'll just say i disagree just because everything i say is respectful i was corrected and eight years ago but the reason i disagree judge is because judge  specifically found that mr windows communication with rodney was for the purpose of seeking legal advice in his eye arguing as the government concedes and its papers and as the second circuit is held seeking you did you receive it but there's something in the briefing that says that there was nothing showing the more you received what is there of record on that issue other other than my adamant protestations that i did and mr wendel because of his military background would never call me rodney either in my presence or out of my presence so my point to the judge was this is untruthful judge it's unreliable evidence but that's all there is in the record is my statement it didn't happen was that what was your statement in the record i said to judge threatening that i didn't receive a video and i said to judge bret knew that my client would never and never has never will and despite my insistence that it makes me feel to walt he never calls just made up yes well that's that's just my view oh so so you know i was refraining from asking you whether you received it or not but apparently you were you were volunteering and did volunteer and just regret that you didn't see it now it occurred to me when i was looking at them and preparing his case that doesn't necessarily resolve the question because because he could be he could at least in theory have sent to you and yours and you didn't receive it either statement it's wholly unreliable and it shouldn't come in period because it goes back to the barrack prejudice issue with your your you seem to be taking the position that he didn't say to his attorney well i'm so i think i know after the court i can't make up fa but what we have on the face of this appeal and what judge greg the head before him without deciding whether it's a credible or incredible statement we have the statement and he found that it shouldn't be admitted not because it's not credible yes and the further point that i made your honor is that if it were to be admitted i then have to make the hard decision of whether or not i can i continue to represent mr wendel or whether i would have to become a defense witness and probably be thank you your honor the defendants in this case would have this court interpret the attorney client privilege as if it were a cold defendant's privilege i think we've hit the point enough here that the discussion was not about legal advice it was not directed to an attorney for getting legal advice it was just among the co defendants and i it appears that we're moving toward a request that this court interpreted as what could be fairly characterized as a codefendant said by co defendants privilege that's not supported by the case law that is not supported by any court's interpretation of the attorney it to a stranger to the grave and well it's not perfect it it may they may have a contempt kunt contractual agreement but the question here is not what they contracted with each other the question here is what this is the attorney client privilege are required for them to establish in order to have it apply disclosure to a stranger is relevant as a waiver of something his privilege if you have something  understand you pose questions it presupposes that the thing was privileged originally and the question was does disclosure on a privileged thing to somebody within the joint defense agreement  equal the same thing as disclosing it to a person outside and and your answer would be would be no i think but the issue here is not the issue is did this ever become privileged is it does it become privilege merely because two defendants who are sharing a joint defense talk to each other is everything the two defendants say to one another when they decide to have a joint defense become a privilege when it hasn't involved the the transmission of the statements to an attorney for advice and doesn't have involved the receipt of advice from me that's correct your honor it's a threshold question and i believe we made that point in my reply brief that this is the threshold question of whether it's privileged just one last thing judge paul asked what would indicate where in the record it indicates what we koski would say there is the three o two but also i would point to the  your brief quotes and yes the sealed appendix at page forty eight which was requested the district court asked for give us a give me a proffer of what it what would what quick housekeeping say and it was submitted and question and answer form