UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-11359

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLARENCE ROBINSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

August 29, 1997 Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue in this appeal from a perjury conviction is whether

the lawyer-client privilege covers: (1) a forfeiture notice

received by Clarence Robinson and handed by him to a lawyer

representing Robinson in another proceeding; and (2) that transfer

of the notice, as well as Robinson’s communications with that, and

another, lawyer, both of whom declined to represent Robinson in the

forfeiture proceedings. The district court rejected the claimed

privilege and admitted the evidence. We AFFIRM

.- 2 - I.

When Robinson was arrested by DEA agents for drug-related

offenses in early January 1994, approximately $3500 was seized.

Several weeks later, on 14 February, the DEA sent Robinson a

notification of forfeiture (the notice) at the Lubbock County Jail,

where he was incarcerated. Robinson was then represented in the

criminal proceeding by appointed counsel, Mike Thomas.

In late February, Thomas visited Robi nson at the jail to

discuss that representation. The conference took place in a secure

meeting room so that prisoners could meet in secrecy with their

lawyers. During the meeting, Robinson handed the notice to Thomas,

asking Thomas if he would represent hi m (Robinson) in the

forfeiture proceeding.

Thomas responded that he had been appointed to represent

Robinson only with respect to the criminal p roceeding. Robinson

then asked Thomas to forward the notice to Ruth Cantrell, a lawyer

who had previously represented Robinson.

Thoma s left the jail with the notice in hand. He promptly

made a copy of the notice and mailed it to Cantrell, together with

a letter explaining his conversation with Robinson; made a copy of

the notice for his (Thomas’) file; and returned the original notice

to Robinson, along with a copy of his letter to Cantrell. Thomas

included a letter of his own to Robinson.- 3 -

Thomas kept copies of the documents in his file. His

representation of Robinson in the criminal matter ended in May

1994, when new counsel was appointed for Robinson’s appeal.

By letter to Robinson in Marc h 1994 referencing “seizure”,

Cantrell stated that she did not feel quali fied to represent

Robinson. She also sent him copies of the materials Thomas had

provided her.

In March 1995, Robinson sought, pro se

, the return of the

money forfeited in accordance with the 1994 notice. His position

in district court was that he did not k now of the forfeiture

proceeding: “If it was done, it was without any notice being sent

to this plaintiff”. The district court denied relief.

Robinson appealed, stating in his pro se brief that he had

never received a notice of forfeiture, or seen the notice which the

DEA published in “USA Today ”, or had actual notice. Our court

remanded the case for a hearing on w hether the DEA had properly

notified Robinson of the forfeiture.

On remand, Robinson testified in June 1996 as follows:

Well, your honor[,] I never did receive

forfeiture pap ers while I was locked up in

jail. And I never did notice that they was

taking anything, my money or anything like

that, because I wasn’t told they was taking my

money. I wasn’t given a receipt for my money,

and my money was not drug related money.

The court: All right, sir. So it is your

position that you did not receive actual

notice from the government that they were- 4 - going to seek f orfeiture of this money; is

that right?

Robinson: No, sir.

T he court: Okay. When you said “no, sir”,

you are agreeing with my statement?

Robinson: Yes, sir.

The court: Okay. And you were in the county

jail here in Lubb ock; is that right; at the

time these proceedings took place?

Robinson: Yes, sir.

The next day, an Assistant United States Attorney, who had

previously contacted Thomas about the matter, told Thomas about

Robinson’s testimony that he had never received the notice. Thomas

responded that he might have documents in his file pertaining to

the truthfulness of that testimony.

Shortly thereafter, a grand jury subpoena issued for any such

documents. Thomas produced them for the grand jury. The produced

documents, to include those subpoenaed from, and produced by,

Cantrell, were: the copies of the notice given by Robinson to

Thomas and sent to Cantrell, and the letters those lawyers sent

each other and Robinson concerning the forfeiture.

Rob inson was indicted for perjury. After a pre-trial

suppression hearing, in which he asserted the lawyer-client

privilege as to Thomas and Cantrell, the trial court ruled from the

bench that, based on the evidence presented,- 5 - this communication between Mr. Robinson and

attorn eys Thomas and Cantrell were

communications that were not intended to

remain confidential. In other words they were

not made in confidence.

The document in question--that is, the notice

of seizure--was a government document created

and received from the Government by Mr.

Robinson. He was seeking to give this

documen t to these attorneys in an effort to

have them represent him in the DEA seizure and

forfeiture proceedings. For that reason I do

not believe that the communications were

cloaked with the attorney/client privilege.

Likewise, the order denying the suppression motion stated in

part:

The Court finds that the communication in

question between Defendant Robinson and

attorneys Thomas and Cantrell was a

c ommunication not intended to remain

confidential. The communication dealt with a

document created by the Government and

received by Mr. Robinson from the Government.

The communication involved Mr. Robinson

seeking legal counsel to contest the DEA

seizure and forfeiture proceedings. Such

communication was not made in confidence.

At the trial on the perjury charge, this objected-to evidence

was admitted. Robinson was convicted of perjury.

II.

Robinson c ontends that the district court erred in not

excluding the testimony of Thomas and Cantrell. Along this line,

he concedes, of course, that the notice per se is not cloaked with

the lawyer-client privilege. Instead, he asserts that his receipt

of it is.- 6 -

“Except as otherwise required by the Constitution of the

United States” or other authority listed in Rule 501, the lawyerclient privilege “shall be governed by the principles of the common

law as they may be interpreted by the courts of the United States

i n the light of reason and experience”. F E D

. R. E VID

. 501.

Accordingly, we review a district court’s ruling on such a claim as

“a question of fact, to be determined in the light of the purpose

of the privilege and guided by judicial precedents”. U nited Sates

v. Neal , 27 F.3d 1035, 1048 (5th Cir. 1994), called into doubt on

other grounds by United States v. Cro uch , 51 F.3d 450 (5th Cir.

1995); Hodges, Grant & Kaufmann v. IRS

, 768 F.2d 719, 721 (5th Cir.

1985). As usual, factual findings are reviewed for clear error;

conclusions of law, de novo

. Neal , 27 F.3d at 1048.

The purpose of the privilege is to “encourage full and frank

communication between lawyers and their clients and thereby promote

broader public interests in the observance of law and

administration of justice”. U nited States v. ( Under Seal) , 748

F.2d 871, 873 (4th Cir. 1984) (quoting Upjohn v. United States

, 449

U.S. 383, 389 (1981)), vacated as moot on other grounds by 757 F.2d

600 (4th Cir. 1985). On the other hand, because the privilege “has

the effect of withholding relevant information from the factfinder, it applies only where necessary t o achieve its purpose”.

Fisher v. United States , 425 U.S. 391, 403 (1976); see also In re

Grand Jury Proceedings (Jones)

, 517 F.2d 666, 671-72 (5th Cir.- 7 -

1975) (“criminal liability” exception to general rule of nonconfidentiality of identity of client “a limited and rarely

available sanctuary” because it “runs counter to the dominant aims

of the law”).

T he assertor of the lawyer-client privilege must prove: (1)

that he made a confidential communication; (2) to a lawyer or his

subordinate; (3) for the primary purpose of securing either a legal

opinion or legal services, or assistance in some legal proceeding.

Neal

, 27 F.3d at 1048; I n re Grand Jury Proceedings , 517 F.2d at

670.

A.

The first question is whether the copy of the notice which

Thoma s retained is privileged in its own right, as distinguished

from Robinson’s contemporaneous communications to Thomas when

Robinson handed over the notice. It goes without saying that

doc uments do not become cloaked with the lawyer-client privilege

merely by the fact of their being passed from client to lawyer.

“If the client is compellable to give up possession, then the

attorney is”. 8 W igmore on Evidence § 2307 (McNaughton Rev. 1961).

In the case of pre-existing documents, if they “could have

been obtained by court process fromthe client when he was in

possess ion[, they] may also be obtained from the attorney by

similar process following transfer by the client in order to obtain

more informed legal advice”. F isher

, 425 U.S. at 403. This result- 8 -

is in accordance with the purposes of the privilege; a client will

not be less likely to show his lawyer important documents, because

those documents do not become mo re easily discoverable by their

revelation to the lawyer. Id. at 403. In the case at hand,

the notice was discoverable when in Robinson’s hands. It did not

become less so by its transfer to Thomas. Moreover, the notice was

not only received by Robinson from a third party, it was

gov ernment-generated. Furthermore, we find no exception to the

general rule because the document produced by Thomas was a copy of

the notice, the original having been returned by him to Robinson.

Our inquiry does not end here, however. The admission in

evidence of the notice (copy) retained by Thomas, without more,

could arguably not have caused a rational juror to find, beyond a

reasonable doubt, that Robinson received that notice, either from

the Government or Thomas. There are several plausible, and

obvious, explanations why Thomas might have been in possession of

the notice without Robinson having ever been in possession. For

this reason, we must address two more issues: whether the fact of

Robinson’s transfer/transmission of the document to Th o mas is

privileged; and whether Robinson’s statements to Thomas

contemporaneous with t h at transmission, as well as Cantrell’s

communications (letter) to Robinson, are privileged.

B.- 9 -

Whether the privilege covers Robinson’s possession of the

document and its delivery to Thomas presents a slightly more

difficult issue than did the document qua document. There is

authority for the position that, with respect to pre-existing

documents, “sending the document to the lawyer for perusal or

handing it to him and c alling attention to its terms ... and the

knowledge of the terms and appearance of the documents which the

lawyer gains thereby are privileged from disclosure by testimony in

court”. 1 McCormick on Evidence § 89 (4th ed.); accord, In re

Grand Jury Proceedings

, 959 F.2d 1158, 1165 (2d Cir. 1992)

(attorney client privilege in the context of pre-existing documents

“attaches not to the information but to the communication of the

information”).

The more reasoned approach, however, is that, although a

communication of “the place of custody of a document may be a part

of a communication ... and may also be a confidential one ...

ordinarily it will be neither”. 8 W igmore on Evidence § 2309

(McNaughton Rev. 1961). This is because, again, the privilege is

to be construed narrowly to apply only where its application would

serve its purposes; where it is doubt ful that a client means to

communicate confidentially, the privilege does not attach, as the

client would have acted similarly even without the privilege.

The instant case is no exception. There is no evidence that

Robinson intended that the fact of his possession of the notice be- 10 -

“communic ated” to Thomas when he handed the document to Thomas.

Robinson merely handed the notice to Thomas, hoping to secure his

representat ion; the document delivery was intended merely to

facilitate the representation, n ot as a statement of possession.

Such delivery cannot reasonably be construed as a “communication”.

Again, we note that Robinson has the burden of showing each element

of the privilege. He has failed to prove that his transfer of the

notice was a communication of the fact of his possession of it.

In any event, assumin g arguendo that Robinson’s transfer of

the notice was a “communication” of his possession of the notice,

there is no evidence that Robinson meant for the communication to

be confidential

. “It is vital to a claim of privilege that the

communication have been made and maintained in confidence”. U nited

States v. Pipkins

, 528 F.2d 559, 563 (5th Cir. 1976). The assertor

of the privilege must have a reasonable expectation of

confidentiality, either that the information disclosed is

intrinsically confidential, or by showing that he had a subjective

intent of confidentiality. Id. at 563; U nited States v. Melvin

,

650 F.2d 641, 646-47 (5th Cir. Unit B 1981). It is not enough for

the mee ting to be between a lawyer and would-be client, or that

the meeting take place away from public view. See id. at 646-47.

Obviously, Robinson’s possession of the notice was not

intrinsically confidential; the government-ge nerated document,

addressed to Robinson in care of the county jail, was delivered to- 11 -

the jail by certified mail. The return receipt is stamped February

22, 1994, and is signed by an authorized person for the county. In

short, knowledge of the delivery of the notic e to the jail was

quite public, to say the least. Restated, mailing the notice to

the jail, and its receipt by the jail, preclude its subsequent

possession by Robinson from being intrinsically confidential.

Furthermore, Robinson showed no intent to retain in confidence

the fact of his possession of the notice. Toward that end, “we

must look to the services which the attorney has been employed [or

sought] to provide and determine if those services would reasonably

be expected to entail the publication of the clients’

communications”. I n re Grand Jury Proceedings

, 748 F.2d at 875.

Robinson was seeking legal representation in the forfeiture action.

It is difficult to imagine a course of representation in that

regard which would not entail the disclosure of the notice and

Robinson’s receipt of it. The notice would quite likely be one of

the first documents, if not the first, referenced in any such

representation. Under these circumstances, any expectation by

Robinson of the confidentiality of his possession of the notice

would be manifestly unreasonable. In short, the possession was not

in confidence.

C.

Finally, we address both Thom as’ testimony about Robinson’s

statements to him when Robinson handed him the notice, and- 12 -

Cantrell’s testimony about her communication with Robinson. Again,

“[i]t is vital to a claim of privilege that the communication have

been made and maintained in confidence”. P ipkins

, 528 F.2d at 563.

1.

Robinso n ’s statements to Thomas were concerned with, and

intended to secure, legal representation. The fact of

representation, or an a ttempt at securing it, are generally not

within the privilege. I n re Grand Jury Proceedings (Jones)

, 517

F.2d at 670-71.

There is an exception to this rule, however, where revealing

the identity of the client would be proba tive or relevant to a

criminal charge against the client. I d. at 672. But, again, as in

all cases, the client must have had a reasonable expectation of

confidentiality, either because the information disclosed is

intrinsically confidential, or because he had a subjective intent

of confidentiality. Pipkins , 528 F.2d at 563; United States v.

Melvin , 650 F.2d 641, 646-47 (5th Cir. Unit B 1981).

Robinson’s statements to Thomas, including hi s request for

legal representation (therefore his identity as a client or wouldbe client), are not intrinsically confidential, for t he same

reasons that his transfer of the notice to Thomas was not. Any

reasonably foreseeable representation would entail the disclosure

that Thomas represented Robinson and, therefore, the substance of

Robinson’s statements to Thomas at their meeting. This information- 13 -

would become public very quickly. Indeed, prior to citing the

notice of forfeiture, perhaps the only th ing which might earlier

become public in a challenge to the forfeiture, see supra

, would be

Tho mas’ statement, written or oral, that he was representing

Robinson in that proceeding. Expecting otherwise is unreasonable.

Robinson’s statements to Thomas were not confidential. The

same applies equally to Cantrell’s communication with Robinson.

2.

In any event, even if Robinson’s statements to Thomas, or

Cantrell’s communication with Robinson, are cloaked in the lawyerclie nt privilege, their admission in evidence would be harmless

error. S ee F ED

. R. E V ID

. 103; U nited States v. Aucoin

, 964 F.2d

1492, 1499 (5th Cir. 1992) (applyin g harmless error analysis to

claim of lawyer-client privilege); United States v. Moody

, 923 F.2d

341, 352 (5th Cir. 1991) (same); United States v. Jimenez Lopez

,

873 F.2d 769, 771 (5th Cir. 1989) (“even if abuse of discretion in

the admission or exclusion of evidence is found, the error is

reviewed under the harmless err or doctrine”). The notice and

Thomas’ testimony about Robinson handing it to him, neither of

which are protected by the privilege, would be more than sufficient

for a rational juror to find, beyond a reasonable doubt, that

Robinson committed perjury.

III.

For the foregoing reasons, the judgment is- 14 - AFFIRMED.