United States v. Krug

16-4136-cr United States v. Krug, et al. 3 4 UNITED STATES COURT OF APPEALS 5 FOR THE SECOND CIRCUIT 6 ____________________ 7 8 August Term, 2016 9 10 (Argued: May 11, 2017 Decided: August 18, 2017) 11 12 Docket No. 16-4136-cr 13 14 ____________________ 15 16 UNITED STATES OF AMERICA, 17 18 Appellant, 19 20 v. 21 22 RAYMOND KRUG and JOSEPH WENDEL, 23 24 Defendants-Appellees. 1 25 26 ____________________ 27 28 Before: LEVAL, POOLER, and HALL, Circuit Judges. 29 30 Appeal from the December 10, 2016 order of the United States District

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

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

1 The Clerk of Court is respectfully directed to amend the caption as above.  1 government witness on the basis of the common-interest rule of attorney-client

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

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

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

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

6 excluded statements made for the purpose of communicating with such an

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

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

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

10 exclusion.

11 Reversed.

12 ____________________

13 JOSEPH J. KARASZEWSKI, Assistant United States 14 Attorney, for James P. Kennedy, Jr., Acting United 15 States Attorney for the Western District of New York, 16 Buffalo, NY, for Appellant. 17 18 TERRENCE M. CONNORS, Connors LLP, Buffalo, NY, 19 for Defendant-Appellee Raymond Krug. 20 21 RODNEY O. PERSONIUS, Personius Melber LLP, 22 Buffalo, NY, for Defendant-Appellee Joseph Wendel. 23

2  1 POOLER, Circuit Judge:

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

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

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

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

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

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

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

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

10 excluded statements made for the purpose of communicating with such an

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

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

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

14 exclusion.

15 BACKGROUND

16 Defendants-Appellees Raymond Krug and Joseph Wendel and Defendant

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

18 about May 31, 2009, the three officers allegedly used excessive force during the 3  1 course of arresting four individuals. As relevant here, Krug and Wendel

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

3 recovered from the crime scene.

4 By indictment dated May 27, 2014, Krug and Wendel were each charged

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

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

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

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

9 similarly charged with three counts of depriving an individual of his

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

11 242, and one count of conspiring to injure, oppress, threaten, or intimidate

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

13 § 241.

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

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

16 meetings together, transmitted emails, and shared legal memoranda and

17 research.

4 13 The district court accordingly precluded the government

14 from introducing Kwiatkowski’s testimony about the hallway discussion at trial.

15 The government timely appealed the district court’s order.

16 DISCUSSION

17 I. Standard of Review

18 Although “[w]e have repeatedly held that this Court reviews rulings on

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

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

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

22 marks omitted). “[T]o determine the appropriate standard of review, we must

7  1 establish whether the district court based its decision on a consideration of the

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

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

4 de novo. Id.

5 Here, we are, as the district court was, asked to determine a question of

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

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

8 II. The Attorney-Client Privilege

9 The underlying purpose of the attorney-client privilege is “to encourage

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

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

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

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

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

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

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

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

18 quotation marks omitted)). To that end, “[t]he attorney-client privilege protects 8  1 communications (1) between a client and his or her attorney (2) that are intended

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

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

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

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

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

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

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

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

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

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

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

13 at 132.

14 “The joint defense privilege, more properly identified as the

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

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

17 protect the confidentiality of communications passing from one party to the

18 attorney for another party where a joint defense effort or strategy has been 9  1 decided upon and undertaken by the parties and their respective counsel.” Id.

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

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

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

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

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

7 given.” Id. at 244.

8 Although the common-interest rule “somewhat relaxes the requirement of

9 confidentiality by defining a widened circle of persons to whom clients may

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

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

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

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

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

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

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

17 the attorney representing the communicating party to be present when the

18 communication is made to the other party’s attorney” under a common-interest 10  1 agreement. Schwimmer, 892 F.2d at 244. Ultimately, “[w]hat is vital to the

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

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

4 Cir. 1961) (Friendly, J.).

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

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

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

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

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

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

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

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

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

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

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

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

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

18 bring such statements within the attorney-client privilege. We know of no 11 1 precedent applying the attorney-client privilege on such facts and we find no

2 circumstances present here that could justify extending the attorney-client

3 privilege to these communications.

4 CONCLUSION

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

6 The government may offer the proffered testimony by Kwiatkowski regarding

7 the hallway discussion at the trial of Krug and Wendel.

12